Archive for the ‘article v convention of states’ Tag

On Being American   1 comment

If you’re looking for a nationalistic post that celebrates the United States of America I hope to disappoint you.

I am an Alaskan raised by Americans, and I celebrate both the Declaration of Independence and the Constitution of the United States of America … circa 1830. But the United States of America today is a far cry from the the nation establish by the Founders. The Founders revolted against England for far less than modern Americans experience everyday.

Seriously, read the Declaration! For an eye-opening twist, read the list of grievances FIRST and then read the awe-inspiring opening. Go ahead. I’ll wait ….

You see what I mean? The federal government became King George a long time ago.

Yes, I’m kind of an anarchist. I see that our Founders did not establish a nation. They formed a cooperative body of individual states. I live in Alaska where almost every moment of our lives is dictated by faceless bureaucrats in DC at the behest of the folks who live in other states. This is no longer Jefferson’s America.

When did we decide it was a good idea for people living in Michigan to tell Alaskans how to live? Yeah, I know about the Civil War, but with all due respect, whether I can burn firewood to heat my home does not rise to the same level as whether I can own another human being. Slavery infringed upon human liberty. Burning firewood to heat my home infringes upon Conoco Phillips ability to make a profit.

Do we see the fundamental difference?

I’m only a passing anarchist. I believe individuals can govern themselves, but I think there needs to be some guidelines. Our Founders recognized this and that’s why they wrote the Articles of Confederation, which failed because it didn’t allow cooperation among the states and couldn’t be amended. Nothing engenders revolution like tyranny that cannot be changed.

Of course aren’t we there today?

In June, state delegates met quietly to discuss a convention of the states to propose amandments to the US Constitution. Thirty-four states have applied for a convention on the subject of a balanced budget. John Boehner is trying to figure out a way to deny it, but 33 states met to plan for it anyway.

I spent considerable time last year explaining how an amendments constitution is not a constitutional convention. I won’t revisit that. It”s a safety valve to prevent revolution when the federal government eats liberty. That”s why Boehner et all wants to weasel out of it.

He can’t ad he shouldn’t. We’re at a critical juncture for our country. If we do nothing, revolution will eventually result because Congress, the Executive branch and the Supreme Court all act as if we the people are subjects, not citizens. If we address this mess through this constitution safety valve, maybe we can restore liberty.

Or maybe not. We may be too far gone to return to our roots. That would be sad because the America of our Founders was a wonderful ideal and we could — and likely will — do a whole lot worse.

Real History of 1787 Convention   Leave a comment

The fame of the 1787 Constitutional Convention has encouraged us to think of any convention created for constitutional purposes as a “constitutional convention.” We are further led to believe that a “constitutional convention” is an assembly with limitless (plenary) power to draft or re-draft the basic law of a nation or state.

Alarmists claim such a convention could repeal the Bill of Rights, restore slavery and work other fundamental changes. The notion that a national convention is inherently plenary was primarily a product of the 19th century. In the Founders’ 18th century view, conventions might be plenary, but most of them enjoyed only restricted authority. The Founders viewed government officials as wielding fiduciary responsibility and falling under agency law, which meant the agents (in this case, the delegates to a convention) could act only as authorized and when they made recommendations beyond their authority, the principal (in this case the public) was not obligated to accept the recommendation.

During the period between independence and the writing of the Constitution, states repeatedly sent delegates with limited powers to conventions to address specific problems. The Pennsylvania Constitution of 1776 and the Vermont Constitution of 1786 both provided for limited amendments conventions, each restricted in authority by a charge from the state “council of censors,” while the Massachusetts Constitution provided for conventions to consider amendments proposed by the towns. The Georgia Constitution of 1777 prescribed a procedure that might have been the template for the convention procedure in Article V:

No alteration shall be made in this constitution without petitions from a majority of the counties … at which time the assembly shall order a convention to be called for that purpose, specifying the alterations to be made, according to the petitions preferred to the assembly by the majority of the counties as aforesaid.

All four of these state constitutions provided for a method by which general ideas for amendment were referred to a limited-purpose convention, which then undertook the actual drafting.

 It is a common misunderstanding that a convention for proposing amendments must be plenary, because the convention could simply choose to exceed the scope of its call and there’d be no way to stop it. It could rewrite the Constitution, establish a junta, seize control of the military and become the new USSR. More realistically, it might send amendments not contemplated by the call to the states for ratification, and the states would simply rubber-stamp whatever was. Obviously, we must avoid that at all costs. (Danger, Danger, Will Robinson)

This fear mongering points to the 1787 federal convention, which (it is claimed) was called “for the sole and express purpose of revising the Articles of Confederation,” but which proved to be a “runaway” convention, scrapping the Articles and writing an entirely new Constitution instead. History may have been changed just a bit on this subject.

What the Founders Said   Leave a comment

Article V of the U.S. Constitution states:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or   by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress….Article V Process Flow Chart

There are two ways of proposing amendments:

• Proposal by two-thirds of each house of Congress, and

• Proposal through the state-application-for-convention process.

Under the latter procedure, two thirds of the states (34 of the current 50) file “applications” with Congress. Congress “shall” call a convention for proposing amendments. That convention then may propose one or more amendments.

There also are two ways of ratifying amendments:

(1) approval by three-fourths of the state legislatures, and

(2) approval by three-fourths of state conventions.

Congress selects the ratification method used in each case. Under either ratification method, no proposed amendment becomes part of the Constitution unless approved by 38 of the 50 states.

Although this text seems clear, uncertainties arise unless it is read against a Founding-era background. Some of the uncertainties pertaining to the state-application-for-convention are as follows:

• Would a convention for proposing amendments be (or could it become) a “constitutional convention” with unlimited power to change (or even rewrite) the Constitution?

• Can states applying for a convention for proposing amendments limit the subject matter the convention may consider?

• If there are sufficient applications, must Congress call such a convention?

• How should Congress count the applications to meet the two-thirds threshold – that is, are all applications aggregated, or are they separated by subject matter?

• Can Congress determine the rules and composition of the convention?

• Is Congress obliged to send a convention’s proposals to the states for ratification?

Founding-era documents suggest that the two procedures for proposing amendments were designed to be equally usable, valid, and effective. Congress received power to initiate amendments because the Framers believed that Congress’ position would enable it readily to see defects in the system. If Congress refused to adopt a needed amendment, however – particularly one to curb its own power – the states could initiate it.  As one Anti-Federalist writer predicted, “We shall never find two thirds of a Congress voting or proposing anything which shall derogate from their own authority and importance.”

In the New York legislature, Samuel Jones explained the plan this way:

The reason why there are two modes of obtaining amendments prescribed by the constitution I suppose to be this – it could not be known to the framers of the constitution, whether there was too much power given by it or too little; they therefore prescribed a mode by which Congress might procure more, if in the operation of the government it was found necessary; and they prescribed for the states a mode of restraining the powers of the government, if upon trial it should be found they had given too much.

 Wow, don’t we live in that second reason!

 The Federalist essayist Tench Coxe, then serving in the Confederation Congress, described the role of the state-application-for-convention procedure:

It has been asserted, that the new constitution, when ratified, would be fixed and permanent, and that no alterations or amendments, should those proposed appear on consideration ever so salutary, could afterwards be obtained. A candid consideration of the constitution will shew [sic] this to be a groundless remark. It is provided, in the clearest words, that Congress shall be obliged to call a convention on the application of two thirds of the legislatures; and all amendments proposed by such convention, are to be valid when approved by the conventions or legislatures of three fourths of the states. It must therefore be evident to every candid man, that two thirds of the states can  always procure a general convention for the purpose of amending the constitution, and that three fourths of them can introduce those amendments into the constitution, although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them. Congress therefore cannot hold any power, which three fourths of the states shall not approve, on experience.

James Madison stated it more mildly in Federalist No. 43:

The Constitution “equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

Thus, the state-application-for-convention process was inserted for specific reasons, and it was designed to be used. We may have personal doubts on whether the process is a good idea in the 21st century, but the Founders thought it was good idea regardless of circumstance.

Being Specific   Leave a comment

The Convention of the States organization proposes a unique method for states to propose amendments to the Constitution. At first, I thought it might not be constitutional, but I’m beginning to soften on that stance without actually relinquishing it.

Primarily, my reason for softening on this is that Congress is trying to nullify some of the state applications for a balanced budget amendment, saying that the applications must be precisely worded. We’re one application away from a convention of the states on a balanced budget amendment IF Congress doesn’t set any of them aside and my gut says they will if they can. Constitutional amendments do not fit the progressive agenda. If you can reform government through a careful method that’s been around for 230 years, it negates their arguments that the president needs vast powers, the administrative state should be in charge and the states should just go along with whatever the federal governments says.

I reread Article V and it doesn’t say the applications can’t be on a particular subject rather than a particular amendment. I can’t find such a limitation being discussed in the Federalists or in the various writings in the runup to ratification of the Constitution. If someone has something to show me wrong, please let me know.

I still hold that you can’t just apply for a convention without a specific topic. That’s a good protection that provides for an amendments convention rather than a constitutional convention and there is support in the Federalists for that stance.

______________________

This is what COS says on its website:

Two goals separate our plan from all other Article V organizations:

1. We want to call a convention for a particular subject rather than a particular amendment. Instead of calling a convention for a balanced budget amendment (though we are entirely supportive of such an amendment), we want to call a convention for the purpose of limiting the power and jurisdiction of the federal government.

2. We believe the grassroots is the key to calling a successful convention.  The goal is to build a political operation in a minimum of 40 states, getting 100 people to volunteer in at least 75% of the state legislative district (that’s 3,000 districts).  We believe this is very doable. Only through the support of the American people will this project have a chance to succeed.

Our Solution is Big Enough to Solve the Problem

Rather than calling a convention for a specific amendment, Citizens for Self-Governance (CSG) has launched the Convention of the States Project to urge state legislatures to properly use Article V to call a convention for a particular subject—reducing the power of Washington, D.C. It is important to note that a convention for an individual amendment (e.g. a Balanced Budget Amendment) would be limited to that single idea. Requiring a balanced budget is a great idea that CSG fully supports. Congress, however, could comply with a Balanced Budget Amendment by simply raising taxes. We need spending restraints as well. We need restraints on taxation. We need prohibitions against improper federal regulation. We need to stop unfunded mandates.

A convention of states needs to be called to ensure that we are able to debate and impose a complete package of restraints on the misuse of power by all branches of the federal government.

What Sorts of Amendments Could be Passed?

The following are examples of amendment topics that could be discussed at a convention of states:

  • A balanced budget amendment
  • A redefinition of the General Welfare Clause (the original view was the federal government could not spend money on any topic within the jurisdiction of the states)
  • A redefinition of the Commerce Clause (the original view was that Congress was granted a narrow and exclusive power to regulate shipments across state lines–not all the economic activity of the nation)
  • A prohibition of using international treaties and law to govern the domestic law of the United States
  • A limitation on using Executive Orders and federal regulations to enact laws (since Congress is supposed to be the exclusive agency to enact laws)
  • Imposing term limits on Congress and the Supreme Court
  • Placing an upper limit on federal taxation
  • Requiring the sunset of all existing federal taxes and a super-majority vote to replace them with new, fairer taxes

Of course, these are merely examples of what would be up for discussion. The convention of states itself would determine which ideas deserve serious consideration, and it will take a majority of votes from the states to formally propose any amendments.

The Founders gave us a legitimate path to save our liberty by using our state governments to impose binding restraints on the federal government. We must use the power granted to the states in the Constitution. 

The Grassroots

The leadership of the COS Project believes the success of a convention of states depends to a large extent on the American citizens. Our plan is as follows:

1. We seek to have a viable political operation that is active in at least 40 states.

2. Initially, we will focus on those 40 states, which have approximately 4000 state house districts. Our goal is to have a viable political operation in at least 3000 of these districts.

3. We will have 3000 district captains who will organize at least 100 people in each district to contact their legislator to support a convention of the states, and turn out at least 25 people per district at legislative hearings.

______________________

Lela – I’m not convinced this is the way to go, but I do find the argument compelling.

http://www.conventionofstates.com/learn-convention-states-0

Four Problems in Need of Solution   Leave a comment

There are four major federal abuses that are driving us toward an age of tyranny such as Alexis de Toqueville described in Democracy in American (1840). These abuses are not just bad policy, but they create a government that does not shatter men’s wills so much as it “softens, bends, and guides” them until we run the risk of becoming nothing more than “a flock of timid and industrious animals, of which the government is the shepherd.”

Spending and Debt Crisis

$17 trillion in national debt ought to leave us dumfounded, but it’s only part of the story. If we apply the normal rules of accounting, the federal government owes trillions more in vested (contractually obligated) Social Security benefits and other entitlement programs. We the people are on the hook for about $2 million a piece in long-term obligations, according to the normal rules of accounting. I’m middle aged. Unless I write a best-seller and become the next flavor of the decade author with multiple movie deals, I’m not generating $2 million in taxes during my remaining lifetime. In fact, the average wage-earner only earns about $2 million over the course of a 40-year career. The government cannot tax its way out of debt. They could confiscate every bit of wage and earnings in the nation and it would not cover the true debt.

The Regulatory Crisis

The federal bureaucracy has placed a complex, conflicting, and crushing regulatory burden upon businesses. Congress has ceded its authority to agencies who, upon enacting the real substance of various laws, then moves forward with little accountability to the American people or even the Congress. Research from the American Enterprise Institute shows that since 1949 federal regulations have made America 72% poorer through a reduction of economic activity of just 2% annually. Welcome to the world of compound interest and unintended consequences. If you make $50,000 in annual income, you really ought to be making $86,000. Does that hit you where you live?

Congressional Attacks on State Sovereignty

For years, Congress has used federal grants to keep the states under its control. These grants accompanied by mandates which are rarely fully funded have turned state legislatures into Congress’s regional agencies rather than truly independent republican governments as they were meant to be. Accompanying this is an erosion of the rights of the people to direct their own lives. We are missing one of the most important principles of the American founding – that legitimate government only exists with the consent of the governed. Did you consent? I don’t recall consenting.

Federal Takeover of the Decision-Making Process

The Founders believed that the structures of a limited government would provide the greatest protection of liberty. They structured the Constitution to provide checks and balances at the federal level. Everything not specifically granted to Congress for legislative control was to be left to the states, which were seen as contraints on federal power. The Supremacy Clause of the Constitution was meant to allow the federal government to protect individual rights when states became abusive of their citizens. So how did we get here, where the states bow and scrape to the federal government instead of controlling it as they were meant to do? Collusion among decision-makers in Washington, D.C. has replaced these essential checks and balances. The federal judiciary supports Congress and the White House in its ever-escalating attack upon the jurisdiction of the 50 states.

For example, bureaucrats in Washington DC look at Fairbanksans who are paying $3.70 a gallon for home heating fuel (a 2000-square foot house requires 2-5 gallons a day, depending on heating system and insulation) and says we can’t burn wood because of health concerns, apparently not caring that freezing to death is a health concern. The State of Alaska, having accepted revenue sharing, writes regulations that will restrict wood stove use to only times when we don’t need to heat our homes because to do fight the EPA on this issue might cost federal highway funds. In the meantime, the local refinery (the second-newest refinery in America, by the way) shuts down due to regulatory burdens, meaning Fairbanksans will be paying $6 a gallon for home heating fuel next winter, just about the time the wood stove ban (they’re calling it a restriction) kicks in.

And this happens all over the country. Post your example if you like.

The only solution (not involving blood-shed) to the situation is to put big government back into the constitutionally created box it was never supposed to stray from.

Article V is a bloodless way to do that!

If we will make use of it.

Reason for Article V Convention   Leave a comment

You know how sometimes you start to research a project and you find a treasure trove of information scattered across the web? Although I found a lot of enthusiasm both for and against, I gravitated to Heritage Foundation and the Goldwater Institute for discussion by cooler heads, but the Convention of the States website has developed into a good resource since I last checked it out.

http://conventionofstates.com/learn-problem

It should be recognized that the writing of the United States Constitution was an act of rebellion. It was a necessary act because the Articles of Confederation were not working and did not allow a mechanism for amendment. Shay’s Rebellion was just the tip of the iceberg of the frustration that was fomenting in the 13 states. The Articles were designed by people in the midst of a war against the only government they had ever known and thus was only one step back from anarchy. No government sounds good after you’ve lived with tyranny for a while, but it turns out to be rather hard on society. It also turns out that “virtually no government” is not a great improvement over no government at all. Thus, the US Constitution, which provided for limited government under the consent of the governed. It was a brilliant idea, but it wasn’t a perfect idea.

With remarkable insight, our Founders perceived a day when the Constitution would need amendment so they set forth a provision for how to do that. Oddly, they didn’t think allowing the sort of convention that they were in the midst of was a good idea. A wide-open convention of that sort could easily “run away”, they saw, so instead, they provided for a limited-scope convention, attended by state-chosen delegates, to address specific subject matters. This does not mean Article V cannot be abused, but that the possibility must be viewed against the clear and present danger to individual rights and freedom from doing nothing in the face of an out-of-control federal government.

Polls show that a growing number of Americans are deeply concerns by the inability of all three branches of the federal government to operate within their constitutional or financial limits. The Constitution needs amendment, either to clarify the scope of federal power or to impose restrictions upon its exercise with the ultimate goal of reviving the Founders’ view of the federal government as a fiscally responsible entity that protects human liberties.

Article V of the Constitution provides that either Congress or a convention of delegates may propose amendments for the states to ratify. A convention arrives when two-thirds (34) states send applications to Congress direction it to call such a convention. An amendment must be approved by three-quarters (38) states before it can become effective, regardless of whether it is proposed by Congress or by the states.

Our Founders had just experienced the endless debate that was Congress under the Articles of Confederation. They recognized that Congress might become irresponsible or corrupt and refuse to proposed needed changes, particularly if those changes might restrain the power of Congress. The state-application-for-convention process allows states to curb federal abuses by their own initiative.

And aren’t we living in those times today? States have sent hundreds of convention applications to Congress over the years, primarily arising from widespread efforts to solve serious problems that the federal government seemed unable or unwilling to solve. None of these applications succeeded in triggering a convention because usually Congress finally felt compelled to act just before the threshold for a convention was met.

A mid-19th century campaign to call a convention to reconcile North and South over the issues of slavery was blocked by politicians more interested in debate than solutions. The Civil War imposed unconstitutional reconstruction upon the South that has had widespread repercussions on the western states ever since.

In the Progressive Era, a carefully orchestrated propaganda campaign focused on corruption in state legislatures caused efforts to call a convention to force direct election of US Senators. This movement was then torpedoed by fear-mongering about the “runaway constitutional convention” that would ensue if Congress didn’t act. The Senate finally yielded and submitted the 17th amendment to the states. The problem of corruption in state legislatures then shifted to corruption in the Senate.

The 20th century balance budget movement was torpedoed by the same fears. When Congress failed to pass an amendment to restrict its own power, if left Congress still unable to balance its budget, resulting in a loss of political legitimacy and a federal debt now almost as large as the entire annual economy.

I think it’s important to understand how this process was meant to work, so that we’re not confused by the propaganda.

Reasons to Reject Article V   Leave a comment

I’m still looking at the reasons for a Constitutional Convention and the risks to the existing constitution from such a gathering. Some people think the Constitution is too precious to risk to a “runaway” convention, while others fear that any amendments will somehow degradate the document. I’m walking through the document to ask:

Do we see a big push to do away with these sections of the Constitution and, if we do, do we really think (realistically) that 75 seperate state legislative bodies are going to agree to these changes? Or is this just going to be a great opportunity to add additional safeguards to the Constitution and talk about what it really, truly means?

So, continuing ….

Article Four is the foundation of federal relationships. It outlines the relationship between the states and the federal government. Mostly, I don’t see a need for changes here, except for the Territorial Clause. Really, it’s ridiculous that the federal government thinks it owns Alaska’s land. The federal government is “we the people”. We the people who live here in Alaska should be allowed to own our land.

Article Five outlines the amendments process. This entire series of articles is on Article Five. I can’t see discussing it here since I’m going through the process in the series.

Article Six – the federal government structure. Does anyone see a need for amendment here? Do we foresee a big push to amend Article Six?

Article Seven – I can’t see states voting to restrict their authority to ratify constitutional amendments. You? And, I think cooler heads would refuse to ratify any push to lower the ratification bars.

I see no more danger to a Constitutional Convention authorized to propose amendments to the Constitution than I do from Congressionally-proposed amendments. The same number of states must ratify any amendment in both procedures. The only difference is that a convention empowers the states rather than Congress which is essentially gridlocked.

Nothing ventured, nothing gained and it might prevent a revolution, but I am going to look at the opposition’s claims, especially those groups at the conservative end of the wading pool.

I Never Consented   2 comments

The Preamble to the US Constitution is a lovely opening statement for a document and we might be pretty attached to it. Something that so elegantly asserts the right of self-government should be considered a national treasure. I encountered a few folks who fear that a constitutional convention would completely rewrite the constitution and do away with the Preamble, replacing it with something akin to the preamble of the Universal Declaration of Human Rights.

Fear is sometimes a good reason not to do something, but that fear should be based on reason and facts, not just on fear itself.

Realistically …

Do we see 75 legislative bodies out of 99 being less than attached to the Preamble of the US Constitution?

I don’t, but I look forward to the debate because it will provide us ownership of our Constitution.

Nobody living in America today agreed to be governed by the Constitution of the United States. While I think it is the best form of government we have today, I think a lot of people don’t understand it and need to. Legitimate government requires the consent of the governed, but I never consented to be governed by the Constitution. I think I would if given the choice, but why should I or anyone else care if our rulers follow it if we did not consent to having it govern us in the first place?

Our Founders created a great form of government, but they weren’t omniscient or prophetic and they failed to properly restrain the government in the late-20th into the 21st century. The current government doesn’t even pretend to obey the constitution. Maybe, if the people through their state legislatures, insisted that they do, we could create a crisis that would affect some change. An Article V convention of the states would be an opportunity to look at what might need tweaking or reform and what should be kept.

First, recognize that the body of the Constitution and the existing amendments cannot be deleted. They can be amended. The original language remains in force, but modified. We’ve only repealed one amendment and it remains in the Constitution so that we can see how dumb we were and that we corrected our mistake.

Article One – the structure and function of the Legislature. Only Nebraska has a unicameral legislature. Do we think they’ll convince the rest of us that it’s a good idea to go that way? There are people who believe that we should make that change – do away with the Senate – but as I have stated several times, 75 of 99 legislative bodies would have to agree to any changes. Changes I could see happening are:

  • Term limits
  • Benefits – the American people are, by and large, annoyed by the idea that you can service one term as a Congressman and have benefits for life.
  • Enumerated powers could use some tweaking and limitations, especially clarifying the Necessary and Proper Clause – perhaps requiring these unenumerated powers to be “ratified” by the states.

Article Two – the structure and function of the Executive. There are a few folks out there that would like to see us move to a Parliamentary system with a prime minister. The difference? The people elect the president. Parliament selects the prime minister. I don’t see those who favor that system winning the day enough to get over the three-quarters bar. States are likely to vote for what they’re used to and every state in the union has a governor similar to a president, so the structure is unlikely to change. Possible amendments could be:

  • Making it clear that the President must be an American citizen with a properly executed birth certificate that shows him/her born in the US or one of the territories or military reservations to American citizen parents, naturalized or born.
  • Restricting the authority to do recess appointments.
  • Allowing a clause for states to issue impeachment proceedings.
  • Limits on executive orders (something the current president really won’t like)

Article Three – structure and function of the Judiciary.  I don’t see a lot of changes occurring to the structure of the federal judiciary. No, the 9th Circuit doesn’t work for Alaskans, but I can’t think of an alternative. Possible changes might be:

  • Term limits for justices. Lifetime appointments no longer work since people started living so long. Appointed positions should never serve for 30 years without some sort of citizen oversight.
  • States should be allowed to petition Congress for redress when the circuit court appears to have become dictatorial.
  • A confidence vote by state legislatures for the federal judiciary. In Alaska, citizens can vote up-or-down every 10 years on retaining judges and we’ve gotten rid of a couple of the worst this way.

The point is that most people are attached to the Constitution, so significant changes to the main body are unlikely to happen. What this process might do, however, is help to clarify that the constitution is still in force and that any extraconstitutional laws must agree with it.

Let’s stop ignoring the Constitution! It’s only obsolete if we allow it to be.

Article V   2 comments

Many people do not realize how close we are to an Article V convention of the states. Article V of the US. Constitution allows for 2/3s of state legislatures to petition Congress for a convention. Thirty-two states have asked for such a convention over the issue of a balanced budget amendment. Two more states and the threshold has been reached. (Since I wrote this, another state has submitted an application on the same issue. Usually, by now, Congress would have acted, but instead it is dithering and suggesting that some of these applications may no longer be valid because it’s been a few years since they were submitted).

 We’ve never had such a convention, not since the one that tossed out the Articles of Confederation and replaced them with the US Constitution. There are a lot of people who are terrified of such a circumstance. They’re right to be circumspect, given that history. Article V puts no limits on the topics, so “anything goes” is a possibility. On the other hand ….

We are at a point in our history where the ballot box no longer works. It especially doesn’t work if you’re a conservative because neither of the two major parties really represents us. Ideas like the balanced budget amendment or term limits for Congress cannot make it through the current Congressional system, so we the people become increasingly frustrated. We vote for meaningful change, but we get the same reshuffling of partisan professional politicians that has been going on for decades. Many of us know it should be different, but peaceful solutions don’t appear to work. So, increasingly, people are starting to discuss revolution.

I’ve just finished going through the Declaration of Independence, drawing parallels between the patriot complaints about King George and our current situation. This is not about President Obama. Yes, I think he’s been a dismal failure as a president. He took a country mired in debt and dug the hole twice as deep. He’s racially divisive, dismissive of anyone who doesn’t agree with him, and he’s expanded the surveillance state beyond even George W. Bush. But, ultimately, he is not the problem. The whole government structure as existing in the 21st century is the problem. He’s just the current face-man for the dictatorship. When he exits stage-left, he’ll be replaced by another.

The problem is that the United States of America was founded upon the simple, radical idea of self-governance, but we’re at the wrong end of a century of liberty restrictions. It’s not the foundation of the country that is the problem, but the superstructure that has been added to it that is threatening to bring it all down. The Constitution and the first 10 or 11 amendments are fine, but slip-shod, short-sighted, and ill-conceived latter editions have expanded government power and circumscribed citizen liberty.

When the ballot box no longer works, the alternative is usually the bullet-box. Fortunately, we have alternatives. I’m just suggesting one for now.

Currently, 32 (33) states are calling upon Congress, pursuant to Article V of the Constitution, to send a balanced budget amendment to the states for ratification. A similar attempt in the 1990s revolved around term-limits. It didn’t make the threshold and Congress has not voted for an amendment to limit itself even slightly in the 15 years since. Wow, are we surprised?

The merits of terms limits or balanced budgets or discontinuing the federal income tax aside, constitutional conventions are scary. The last time a con-con was threatened, it was the early 20th century and it resulted in the Progressive Era amendments being passed – direct election of senators, the income tax, and prohibition of alcohol. One was so bad it’s already been repealed and the other two …. These amendments were passed by Congress to avoid a con-con. Enough states had already petitioned on the subject of direct election that the only way to avoid it was to pass the 17th amendment. Congress put out the idea that a con-con would be fraught with peril because it would essentially set aside the Constitution and operate by rules set by the delegates.

It’s not true! The Constitution does NOT provide for a Constitutional Convention such as was held in 1787. It provides for a “Convention for proposing Amendments” to the Constitution. That is NOT a trivial difference. Yes, such a convention would make its own rules and Article V does not provide limits on the topics. There is no part of the Constitution, including the amendment provisions themselves, that a convention might not try to amend. Congress and state legislatures could not limit the agenda. However, a convention may only “propose” amendments. No proposal becomes constitutional law until it is ratified by the states.

There is a great deal of difference between a free-standing “Constitutional Convention”—authorized to write even its own rules of ratification—and a convention for proposing amendments to an existing constitution that already prescribes how any such amendments are to be ratified. In no way does Article V authorize the former. Any proposals to amend the existing Constitution that proceed by either of the methods prescribed in Article V must be ratified by the procedures prescribed there. Even a proposal to change the ratification procedure itself must be ratified by the existing ratification procedure.

It’s no accident that in 230-odd years there have only been 27 amendments ratified for ratification must be by the concurrence of “the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.” Given the unlikelihood of the latter method, the numbers alone tell the story. It takes majorities in 75 of the 99 state legislative bodies in America to ratify any change in the Constitution.  Only 13 such bodies to block any change. You do the math!

Are there not 13 bodies in the states united that would rise to block all but the most popular of proposals? A generation ago, not even the Equal Rights Amendment—which enjoyed wide support—was able to make it through the ratification process.

Article V was put in the Constitution to be used, but not for light and transient reasons. By overwhelming majorities, averaging 75%, Americans of every creed and color have come to understand that there is something fundamentally wrong with a system that, under modern conditions, has resulted in our being ruled year in and year out by a class of professional politicians and bureaucrats. Why don’t we just call them the Ruling Class. Oh, yeah, I have already!

The situation is neither healthy nor right in a limited, constitutional republic. Fortunately, the Framers provided a way to do something about it, a way to make fundamental change while ensuring that our fundamental principles remain in place.

Yeah, there are risks. Life entails risk. Usually, fixing something that’s broken holds risk, but fixing it also holds rewards.

Ballot Box, Bullet Box or …?   Leave a comment

Election cycle after election cycle has produced growing tyranny.

At the same time, polls show that the American people are highly (60-75%) dissatisfied with the current government and feel there is never any progress toward resolving the real issues of the country no matter which party is in control.

When the Republicans were in the majority of all three branches of government, tyrannical regulations continued to grow and so did spending.

When the Democrats were in the majority of all three branches of government, tyrannical regulations continued to grow and spending increased even faster than under the Republicans.

Now that we have divided government, tyrannical regulations continue to grow, spending has stabilized at an unacceptably high level, but the problems are mainly being kicked down the road. Solutions are addressed in one chamber to be ignored by the other and if it gets passed by the Senate, the President will veto it. If he doesn’t and it becomes law, the administrative state will bury any solution that moves toward self-government deep, deep in a vault never to be seen again.

States have good ideas, but the federal government ignores the states or threatens them with draconian action if they “get out of line”. The solution when the ballot box doesn’t work is … some would say revolution, but revolutions are bloody and result in graveyards and involve completely setting aside the existing form of government. I like the government our Founders designed. I’d like to pull it out of the swamp it’s been buried in and wipe the muck off, see if it might actually work in the 21st century if given a chance. If only our Ruling Class would allow that …

Our Constitution provides the means to peacefully correct the current mess, but Congress as currently arranged is not going to pass the REINS Act (requiring a thorough Congressional review and up-down vote on all federal regulations) or constitutional amendments requiring term limits, balanced federal budgets, repeal of the 16th Amendment (personal income tax), and the17th Amendment (direct election of Senators) and restructuring (or repeal/replace) of the 14th Amendment (where it interferes with the 10th Amendment).

Fortunately, if Congress won’t act to send amendments to the states for ratification, then the Constitution provides an alternative means to avoid armed revolution. An amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate (uh, yeah, not going to happen) or by a constitutional convention called for by two-thirds of the State legislatures.

I was taught in political science classes that an Article V convention to amend the U.S. Constitution is a scary thing that never turns out well. It’s never happened in the United States, unless you count the convention that replaced the Articles of Confederation with the U.S. Constitution. That history gives us a reason to be nervous of such a gathering, but the question we need to ask ourselves is: should we fear that gathering more than we fear the unchecked growth of governmental tyranny?

My professors, who were almost all on the moderate left, feared a conservative uprising to create a permanent ban on all abortions, relegating women to barefoot pregnant culinary servitude, imposing a theocracy, and making Ronald Reagan President for life. Today, I’m sure they worry about conservatives doing many of the same things. But let’s be honest. Those on the right fear what a liberal uprising might do on such issues, including making Barack Obama President for life, and the very real risks to the First Amendment protections for political speech, the 2nd Amendment, the 4th Amendment and 10th Amendment. Heck, I worry about the potential effect on the entire Bill of Rights. There are those who believe that the dangers of a runaway convention are so severe that we cannot risk ruining our Constitution by even allowing such a convention to take place.    

(When I wrote the following six months ago, I was not convinced. Now, I think it may well be the only way to save the republic. Lela)

For a long time, I agreed. Now, I’m not so certain. I haven’t drank any koolaid yet, but I’m re-evaluating my position, because:

  • The federal government has grown far beyond its constitutionally imposed limitations. 
  • All branches of the government have participated
  • Each exercises unprecedented control over the lives of the citizens.
  • The “administrative state” acts as a fourth, extra-constitutional branch of government that falls outside of the normal checks-and-balances of the federal structure. 

The federal kraken has grown into a leviathan that we may not be able to tame without an Article V amending convention.  We have three choices – continue with growing tyranny until we slide into a totalitarian state (yes, it CAN happen here), explode into a revolution (consistent with our national DNA), or take an intermediate step that may seem radical, but might avoid bloodshed.

In Federalist No. 48, James Madison wrote: “The conclusion which I am warranted in drawing from these observations is that a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”

Madison was prescient.  The American Constitution may be the best document of its kind ever written, but even the mighty Constitution itself has not been enough to restrain against the encroachments of a tyrannical concentration of federal government power.  Madison predicted this day and the Framers provided a safety valve for it. Perhaps it is time the citizens rise up, through a Convention of the States and restrain the federal kraken again.

I don’t write that without trepidation. I’m a federalist, so I tend to trust the states far more than I do the federal government, but the America of the 21st century is not the America of the 18th. There are risks inherent in such a gathering. California and Texas have radically different ideas of what the country should look like. However ….

The Founders made this mechanism available in the Constitution itself to avoid another blood-soaked armed revolution. Thirty-eight states must ratify any amendment. Take a look at the red-blue map and look at the states so represented. I couldn’t find 38 states that could form a radical left or right bloc. I did count 38 states that might be in favor of stuffing the federal kraken back in the cage from which it has slithered.

Each state’s legislature would need to weigh carefully the delegates to this convention and give them specific instructions on what they may and may not meddle with. Alaska is unlikely to send delegates who oppose the First Amendment protections on speech, the Second Amendment protections on fire arms, the protections on fair trial, privacy, or states’ rights. I think we might be surprised at how California and New Jersey feel about states’ rights once they realize that the power to infringe upon their rights is also part and parcel with the power to infringe upon the rights of other states. The body of the Constitution and the Bill of Rights are probably safe from being heavily meddled with by 38 states – well, actually 75 of the 99 legislative bodies in the 50 states. Nebraska has a unicameral legislature, by the way. I’m not saying there wouldn’t be debate at the convention on the Bill of Rights. I just can’t see 75 legislative bodies agreeing to ratify substantial changes, even on the 2nd amendment and most especially on the 10th. If anything, I think they’d want to make that one clearer.

The following 17 amendments may be a different matter. They should be a different matter because many of them were ill-conceived, enacted with era-specific agendas, resulting in unintended negative consequences that may, in some instances, outweigh the positive consequences. No, I’m not saying these amendments should all be repealed. I’m saying they want examination and reform as needed and, if Congress won’t do it, then the state legislatures must.

Else, we’re ending as a nation because what we have currently is not working.

State legislatures would need to carefully weigh how their authority would be wielded by their delegates at the convention. I’m encouraged by the December 7 meeting of state legislators that addressed this issue. Choosing delegates would be instructive in itself. Following the convention, just as in 1789, the amendments would have to go to each legislature and 38 of them would need to agree to them to make any changes our constitution. Some states might put it to a direct vote of the people. Others would probably create ratification committees. Again, the debates triggered would go a long way toward educating the public on the Constitution and (perhaps) giving our generation ownership of it. In 1787, the whole Bill of Rights was put up as a package, but that needn’t be the process for whatever a convention came up with in, say 2015. More than likely, it would be a line-item ratification just as congressionally-generated amendments have been.

Though it’s not without risk, what better example of states rights and self-government do we need in the 21st century?

The alternative is we wait for the situation to become so bad that Americans take up arms against Americans. Oh, yeah, we did that once before. Southerners started shooting at Northerners, the President declared war and, after four years of bloodshed, the “winner” forced the loser to cede states’ rights in favor of an imperial administration. The country has been on a liberty-damaging trajectory ever since.

What if we had called a constitutional convention in 1860 and resolved the slavery question through compromise and negotiation instead of bloodshed and tyrannical reconstruction?

Which do we in the 21st century prefer?

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