NOT A CONSTITUTIONAL CONVENTION!

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THE OTHER WAY TO AMEND THE CONSTITUTION: THE ARTICLE V CONSTITUTIONAL CONVENTION AMENDMENT PROCESS

Source; http://www.law.harvard.edu/students/orgs/jlpp/Vol30_No3_Rogersonline.pdf

I. INTRODUCTION

The Constitution specifies two different ways for amendments to the Constitution to be proposed. The first method allows Congress to propose amendments when such amendments are approved by at least a two‐thirds vote in both houses.[1] The States can then ratify the proposed amendments. The second method is less familiar to most people, as it has never been used. This method requires Congress to call a constitutional convention to propose amendments when two‐thirds of the States apply for such a convention.[2] Many questions exist about the use of this amendment process. May the convention’s scope be limited to certain subject matters? If so, who may limit it? How are state applications to be tallied—separately by subject matter or cumulatively, regardless of their subject matter? What is the relevance of the convention method of proposing amendments? Why should it ever be used? Some of these uncertainties about the convention have most likely contributed to states’ reluctance to use the method. Yet, as of 1993, almost 400 convention applications had been submitted to Congress by the States since 1789.[3] This Note will attempt to explore the history of the Convention Clause in Article V and answer some of the questions about its use.

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1. U.S. CONST.

art. V.

2. Id.

3. Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Les‐ sons of the Twenty‐seventh Amendment, 103 YALE L.J. 677, 764 (1993).

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II. HISTORY

A. The Constitutional Convention

Much of the confusion about Article V comes from its ambiguous language. This ambiguity is the result of compromises at the Philadelphia Convention of 1787 between groups that wanted to exclude the national legislature from participating in the amendment process and groups that wanted to grant the national legislature the sole authority to amend.[4] The earliest proposal for an amendment provision, contained in the Virginia Plan, stated that “the assent of the National Legislature ought not to be required” to amend the Constitution.5 Convention delegates privately circulated a proposed constitution authored by Alexander Hamilton [6] that gave the power to amend the Constitution to the national legislature and the power of ratification to legislatures or conventions in the States.[7] The Conventionʹs first official action regarding the method for amending the Constitution was to adopt Resolution 17, which stated that the Constitution should contain some means for amendment, but did not specify the particular process to be used.[8] The first reference to the use of a convention requested by the States is found in drafts of the Constitution kept by the Committee of Detail.[9] After several revisions, the Committee’s final statement stated that “[t]his Constitution ought to be amended whenever such Amendment shall become necessary; and on the Application of the Legislatures of two thirds of the States in the Union, the Legislature of the United States shall call a Convention for that Purpose.”10 Hamilton and others argued that in addition to State legislatures, Congress should also have the power to propose amendments, and the Convention approved the addition of language giving Congress the power ----------------------------------------------------------------------------------------

4. See Bruce M. Van Sickle & Lynn M. Boughey, A Lawful and Peaceful Revolution: Article V and Congressʹ Present Duty to Call a Convention for Proposing Amendments, 14 HAMLINE L. REV. 1, 10 (1990).

5. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 22 (Max Farrand ed., 1937) (hereinafter RECORDS OF THE FEDERAL CONVENTION).

6. 3 RECORDS OF THE FEDERAL CONVENTION, supra note 5, at 617.

7. Id. at 630.

8. 2 RECORDS OF THE FEDERAL CONVENTION, supra note 5, at 84.

9. Van Sickle & Boughey, supra note 4, at 16‐17.

10. 2 RECORDS OF THE FEDERAL CONVENTION, supra note 5, at 159.

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to propose amendments.[11] James Madison proposed new language that removed reference to a convention and gave the national legislature sole authority to propose amendments when‐ ever it would “deem necessary, or on the application of two thirds of the Legislatures of the several States.”[12] This language was adopted by the Convention, with no discussion about the elimination of the references to the use of conventions.[13] On September 15, as the Convention was reviewing the revisions made by the Committee of Style, George Mason expressed opposition to the provisions limiting the power to propose amendments to Congress. According to the Convention records, Mason thought that “no amendments of the proper kind would ever be obtained by the people, if the Government should be‐ come oppressive, as he verily believed would be the case.”[14] In response, Gouverneur Morris and Elbridge Gerry made a motion to amend the article to reintroduce language requiring that a convention be called when two‐thirds of the States applied for an amendment.[15] Madison stated that he did not object to the convention method, but in expressing what proved to be prophetic concerns, he pointed out that “difficulties might arise as to the form” the convention would take.[16] Morris and Gerryʹs motion was unanimously adopted.[17] After Roger Sherman ex‐ pressed concern that the Constitution could be amended to take power away from smaller states,[18] the clause stating ”that no State, without its consent” could be deprived of “equal suffrage in the Senate” was added.[19] No further changes were made to the text of Article V, and the final version of the Constitution was adopted.[20] The final text of Article V reads:

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 -----------------------------------------------------------------------------------------------------

11. Id. at 555, 557–59.

12. Id. at 555, 559.

13. Van Sickle & Boughey, supra note 4, at 20.

14. 2 RECORDS OF THE FEDERAL CONVENTION, supra note 5, at 629.

15. Id.

16. See id. at 629–30.

17. Id. at 630.

18. See id.

19. Id. at 631; see also U.S. CONST. art. V.

20. 2 RECORDS OF THE FEDERAL CONVENTION, supra note 5, at 633–34, 662–63. For a more detailed account of the drafting of Article V at the Constitutional Convention, see Van Sickle & Boughey, supra note 4, at 7–24.

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thirds of the several States, shall call a Convention for pro‐ posing 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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.[21]

B. Attempts to Use the Convention Method

Although the convention method for proposing amendments has never been used, the threat of a convention has sometimes spurred Congress to action. During debates over the Constitution’s ratification, the threat of a second constitutional convention was a key factor in Congress proposing the Bill of Rights.[22] There have been several occasions where the number of state applications for a convention was close to reaching the required two‐thirds; at least once during the course of events leading to the adoption of the Seventeenth Amendment, the threat of a constitutional convention may have spurred Congress to act preemptively to propose the desired amendment itself.[23] The prospect of a convention may also have played a role in leading Congress to propose the Twenty‐first, Twenty‐ second, and Twenty‐fifth Amendments.[24]

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21. U.S. CONST. art. V.

22. See RUSSELL L. CAPLAN, CONSTITUTIONAL BRINKSMANSHIP: AMENDING THE CONSTITUTION BY NATIONAL CONVENTION 32–40, 165–68 (1988) (observing that Virginia and New York submitted petitions requesting such a convention in 1788 and 1789, respectively).

23. See Dwight W. Connely, Amending the Constitution: Is This Any Way to Call for a Constitutional Convention?, 22 ARIZ. L. REV. 1011, 1015, 1016 n. 49 (1980); Van Sickle & Boughey, supra note 4, at 37. But see CAPLAN, supra note 22, at 65 (“[T]here remains no evidence that the convention threat by itself forced the Sen‐ ate to approve the [Seventeenth A]mendment. At least as influential was the growing quota of senators chosen by popular vote.”); Kris W. Kobach, Rethinking Article V: Term Limits and the Seventeenth and Nineteenth Amendments, 103 YALE L.J. 1971, 1976–80 (1994) (arguing that the growing proportion of senators elected by popular vote was the “most influential [factor] in finally winning a formal amendment to the U.S. Constitution”).

24. Connely, supra note 23, at 1016 n.49.

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In the last four decades, there have been two nearly‐ successful attempts by the States to call a convention, each at‐ tempt needing applications from only one or two additional states to reach the two‐thirds requirement. The first attempt was a reaction to two Supreme Court decisions, Wesberry v. Sanders25 and Reynolds v. Sims, [26] which dealt with the apportionment of votes and voting districts. State legislatures began to file applications with Congress requesting a convention to address the issue of these reapportionment decisions, and the Council of State Governments officially endorsed such an amendment.[27] By 1969, thirty‐three states had submitted applications calling for a convention to address the apportionment issue, one short of the thirty‐four needed.[28] Shortly afterwards, however, several states rescinded their applications, and the momentum for a constitutional amendment to overturn these Supreme Court decisions declined.[29] There were two likely reasons for the failure of this attempt to call a convention. First, as the number of states that had applied approached thirty‐four, well‐publicized speculation that the convention, once called by Congress, could not be limited to a single issue spread fear of an uncontrollable convention. Second, as states reapportioned their districts to comply with the Supreme Court decisions, opponents of reapportionment realized that it did not threaten rural interests, as they had previously feared.[30] The second nearly‐successful attempt to call a convention arose out of the state legislatures’ desire for a balanced‐budget amendment in the late 1970s and early 1980s. As was the case with the Seventeenth Amendment, pressure from applications requesting a convention led the Republican‐controlled Senate to approve a balanced budget amendment in 1982 by a margin of 69 to 31.[31] The amendment, however, did not have enough support to pass in the Democrat‐controlled House of Represen‐ -------------------------------------------------------------------------------------------

25. 376 U.S. 1 (1964) (upholding the principle of one person, one vote and stat‐ ing that the “Constitution’s main objective [is] making equal representation for equal numbers of people the fundamental goal of the House of Representatives”).

26. 377 U.S. 533 (1964) (requiring equal apportionment of seats in state legisla‐ tures so that different districts have roughly equal populations).

27. CAPLAN, supra note 22, at 74–75.

28. See id. at 76.

29. See id.

30. See id. at 75–76.

31. See S.J. Res. 58, 97th Cong., 128 CONG. REC. 19,169, 19,229–30 (1982).

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tatives.[32] The States were unable to provoke a response from Congress as they had been able to with the Seventeenth Amendment. The first state application for a balanced budget amendment was made by North Dakota in 1975, and the thirty‐second was made by Missouri in 1983.[33] The drive to request a convention then lost momentum.[34] Among the reasons for this slowdown were, once again, fears that a convention could not be limited to a single subject, a decrease in the number of Republicans (who tended to support the amendment more than Democrats) in state legislatures, and concern in the Northeast about the loss of federal grants if the budget were balanced.[35] Another significant reason for the loss of momentum was the passage in Congress of the Balanced Budget and Emergency Deficit Control Act, known as the Gramm‐Rudman‐Hollings Act, which required that the budget be balanced by 1991.[36]

III. UNANSWERED QUESTIONS ABOUT AMENDING THE CONSTITUTION THROUGH A CONVENTION

As previously discussed, much of the opposition to recent at‐ tempts to propose amendments through a convention comes from concerns that it could become a “runaway convention.”[37] The fear is that a convention would exceed its mandate and radically alter the Constitution, or at least propose amendments beyond the scope of the originally intended subject matter.[38] There are two perspectives on this issue: some believe Congress has broad power to limit the scope of a convention and to impose rules and procedures for its operation through

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32. See H.R.J. Res. 350, 97th Cong., 128 CONG. REC. 27,172, 27,255 (1982). The final vote was 236 to 187, 54 votes short of the required two‐thirds majority.

33. CAPLAN, supra note 22, at 79, 83.

34. Id. at 83.

35. Id. at 84.

36. Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99‐ 177, 99 Stat. 1038, invalidated by Bowsher v. Synar, 478 U.S. 714 (1986); see also CAPLAN, supra note 22, at 84–85; Van Sickle & Boughey, supra note 4, at 37–38.

37. Arthur J. Goldberg, The Proposed Constitutional Convention, 11 HASTINGS CONST. L.Q. 1, 2 (1983).

38. Charles L. Black, Jr., Amending the Constitution: A Letter to a Congressman, 82 YALE L.J. 189, 198–200 (1972); Gerald Gunther, The Convention Method of Amending the United States Constitution, 14 GA. L. REV. 1, 4–11 (1979).

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the “political question” doctrine;[39] others believe that, based on the original text, meaning, and purpose of Article V, the scope of a convention cannot be limited.[40] A related question is whether applications for a convention limited to a particular subject matter should be considered separately, thereby ensuring that a convention is held only when two‐thirds of the States have requested a convention for the same subject matter, or if all applications should be considered jointly, so that a convention is required when two‐thirds of the States have applied for a convention for any purpose.   Because the United States has never used an Article V constitutional convention to propose amendments, these questions have never received definitive answers. This Article’s position is that Congress does not have the power to limit a convention. The text and history of Article V indicate that Congressʹs role in calling a convention is merely ministerial. The original purpose of Article V was to give States the power to circumvent a recalcitrant or corrupt Congress. It thus makes little sense for it to give Congress broad power to control a convention. In light of the text of Article V and its purpose to empower States, States should have the power to limit the scope of a convention and to limit their applicationsʹ validity to only a certain topic. The original purpose of Article V also indicates that States’ applications should be grouped and counted by subject‐matter.

A. The Political Question Doctrine and Congressʹs   Power Over a Convention

Proponents of the view that Congress has broad discretion to control the subjects discussed at, and the procedures used in, a constitutional convention primarily base their arguments on the political question doctrine.41 The Supreme Court first formulated the political question doctrine, as applied to Article V,

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39. Sam J. Ervin, Jr., Proposed Legislation to Implement the Convention Method of Amending the Constitution, 66 MICH. L. REV. 875, 879–80 (1968); Paul G. Kauper, The Alternative Amendment Process: Some Observations, 66 MICH. L. REV. 903, 907–08 (1968); cf. ABA SPECIAL CONSTITUTIONAL CONVENTION STUDY COMM., AMENDMENT OF THE CONSTITUTION BY THE CONVENTION METHOD UNDER ARTICLE V 31–32 (1974) (stating that under the political question doctrine, Congress has the authority to determine the timeliness of state applications for a convention).

40. Black, supra note 38; Walter E. Dellinger, The Recurring Question of the “Limited” Constitutional Convention, 88 YALE L.J. 1623, 1633–36 (1979).

41. See supra note 39 and accompanying text.

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in Coleman v. Miller. [42] Coleman involved a question about the validity of the Kansas legislatureʹs ratification of the Child Labor Amendment. The Kansas legislature originally rejected the proposed amendment in 1924, but reversed itself in 1937 and ratified the amendment.[43] The Kansas state senators who voted against ratification in 1937 sued, arguing that “by reason of [Kansasʹs previous] rejection and the failure of ratification within a reasonable time the proposed amendment had lost its vitality” and that the second ratification vote in 1937 was invalid.[44] The Court held that Congress, not the Court, had the final authority to determine the validity of an amendment’s ratification.[45] In reaching this conclusion, the Court stated that the issue “should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.”[46] The Court based its conclusion on the “historic precedent” of the authority Congress exercised in determining the validity of the Statesʹ ratifications of the Fourteenth Amendment.[47] There was uncertainty regarding the ratification of the Fourteenth Amendment because Ohio and New Jersey first ratified the amendment and then later rescinded their ratification. Congress requested that the Secretary of State provide a list of states that had ratified the amendment. Secretary Seward issued a report noting Ohio and New Jerseyʹs attempted rescission and concluded that if their original ratifications were still in force, the amendment had already been ratified and had be‐ come part of the Constitution.[48] Congress responded the next day by passing a resolution declaring the Fourteenth Amendment to be part of the Constitution, thereby refusing to recognize the rescissions. [49] The Court also noted that Georgia, North Carolina, and South Carolina rejected the amendment, and it was ratified in those states only after Congress directed that

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42. 307 U.S. 433 (1939). For a criticism of Coleman, see Paulsen, supra note 3, at 707–21.

43. Coleman, 307 U.S. at 435–36.

44. Id. at 436.

45. Id. at 458.

46. Id. at 450.

47. Id. at 448–50.

48. Coleman, 307 U.S. at 449.

49. Id. at 448–49.

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new state governments be established in those states.[50] The Court declared that in spite of these irregularities in the ratification process, “[t]his decision by the political departments of the Government as to the validity of the adoption of the Fourteenth Amendment has been accepted.”[51] In a concurring opinion joined by three justices, Justice Black stated that “control of [the amending] process has been given by [Article V] exclusively and completely to Congress. The process itself is ʹpoliticalʹ in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point.”[52] Thus, whenever an issue falls under the political question doctrine, it is non‐justiciable in the eyes of the courts. The issues before the Court in Coleman, however, dealt only with the validity of the ratifications, and the Court based its holding on Congress’s Article V power over ratification.[53] As the political question doctrine developed, the Court seems to have established a three‐part test to determine when it should apply.54 First, the Court asks if there has been a “textually demonstrable constitutional commitment of the issue to a coordinate political department.”[55] Second, the Court asks if there are a “lack of judicially discoverable and manageable standards for resolving” the question.56 Third, the Court considers factors dealing with “deference to the political branches and avoidance of judicial policymaking.”[57] A discussion of the criticisms of Coleman and the political question doctrine is beyond the scope of this Article. Even assuming the validity of the political question doctrine, however, Congress still lacks authority over the convention process. As is

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50. Id. at 448.

51. Id. at 449–50. But see Dyett v. Turner, 439 P.2d 266, 273–74 (Utah 1968); Douglas H. Bryant, Unorthodox and Paradox: Revisiting the Ratification of the Four‐ teenth Amendment, 53 ALA. L. REV. 555 (2002); cf. AKHIL REED AMAR, AMERICAʹS CONSTITUTION: A BIOGRAPHY 364–65 (2005).

52. Coleman, 307 U.S. at 459 (Black, J., concurring). The three justices who joined Justice Black’s opinion were Justices Roberts, Frankfurter, and Douglas.

53. Article V states that ratification can be accomplished either through the state legislatures or by ratification conventions in each state and that “the one or the other Mode of Ratification may be proposed by the Congress.” U.S. CONST. art. V. 54. See Paulsen, supra note 3, at 713.

55. Id. (internal quotation omitted).

56. Id. (internal quotation omitted).

57. Id. (internal quotation omitted).

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explained below, the text and history of the Convention Clause demonstrate that Congress is obligated to call a convention when two‐thirds of the States have applied for one, and has no discretion in the matter. Thus, the political question doctrine does not apply to congressional control of a convention be‐ cause it fails the first part of the test: the issue has not been constitutionally committed to Congress (except for a ministerial duty), but to the States.

1. The Statesʹ Power over the Convention Process

Exclusive and complete control of the convention process by Congress would be contrary to the language and purpose of the Convention Clause of Article V. The clear meaning of Article V requires State control of the convention process. Article V states that Congress, “on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments.”[58] The use of the word “shall” indicates that Congress has no discretion in the matter and is obligated to call a convention.[59] Several comments made by those involved in the drafting and ratification of the Constitution confirm this view. In The Federalist, Alexander Hamilton stated that, upon the application of two‐thirds of the States for a convention, Congress was “obliged” to call a convention and that “[t]he words of this article are preemptory. . . . Nothing in this particular is left to discretion.”[60] Similarly, during the ratification debates in North Carolina, James Iredell, who later be‐ came one of the original justices of the United States Supreme Court, stated that whenever two‐thirds of the States apply for a convention, Congress is “under the necessity of convening one” and that they have “no option.”[61]

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58. U.S. CONST. art. V (emphasis added).

59. See Douglas G. Voegler, Amending the Constitution by the Article V Convention Method, 55 N.D. L. REV. 355, 367–69 (1979) (arguing that “Article V places a mandatory duty upon Congress to call a convention, when properly petitioned”); Laurence H. Tribe, Issues Raised by Requesting Congress to Call a Constitutional Convention to Propose a Balanced‐Budget Amendment, 10 PAC. L.J. 627, 634 (1979) (“Neither the text nor the history of Article V leaves any reasonable doubt . . . . In this context ‛shall’ clearly means ‛must.’” (internal citations omitted)); Van Sickle & Boughey, supra note 4, at 41–42 (stating that Congressʹs role in calling a convention should be “merely mechanical or ministerial, rather than discretionary.”).

60. THE FEDERALIST NO. 85, at 456–57 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001).

61. 4 THE DEBATES OF THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 177–78 (Jonathan Elliot ed., 1937).

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The purpose of the Convention Clause strengthens the argument that Article V gives control of the convention process to the States. The records of the Constitutional Convention clearly show that the purpose of the Convention Clause was to protect the States against a recalcitrant or corrupt Congress. In the face of congressional inaction, the States could circumvent the national legislature to propose needed amendments.[62] If Congress had broad discretionary power over the conventions, it could potentially prevent or obstruct a convention that was desired by two‐thirds of the States, thereby defeating the purpose of the convention method of amending the Constitution. If Congress does not have power over a constitutional convention, there still remains a vexing question: who determines the procedures for the convention, such as voting rules and selection of delegates? There are no clear answers, but some guidance may be gleaned from the country’s only experience with a constitutional convention: the Philadelphia Convention of 1787. In that convention, state legislatures chose delegates, and the convention adopted its own voting and procedural rules.[63] A convention to amend the Constitution could follow a similar path, with the process for selection of delegates from each state determined by the state legislatures. The convention would then determine its own voting rules and procedures when the delegates from the States convene. Admittedly, this is not an ideal solution because such a system could lead to much confusion and possibly inequitable voting rules at the convention. The only definitive way to eliminate this possible confusion and inequity would be to amend the Constitution with more specific procedures and details for the operation of the convention.

B. Does the Original Meaning of Article V   Prevent a Limited Convention?

Congress’s inability to limit the scope of a convention suggests that a limited convention, even if requested by the States is not permissible. If the States, however, were prevented from limiting a convention, the purpose of empowering them to bring about desired constitutional change in the face of a recal‐

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62. 1 RECORDS OF THE FEDERAL CONVENTION, supra note 5, at 202–03; 2 RECORDS OF THE FEDERAL CONVENTION, supra note 5, at 629; 4 RECORDS OF THE FEDERAL CONVENTION, supra note 5, at 61.

63. Jon Elster, Arguing and Bargaining in Two Constituent Assemblies, 2 U. PA. J. CONST. L. 345, 358–69 (1999).

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citrant Congress would be significantly curtailed. It is necessary, therefore, to take a middle road when interpreting the Convention Clause. While the States may not have direct authority to limit a constitutional convention, they do have the ability to indirectly do so by applying for a convention limited to a specific subject matter. Congressʹs ministerial duty to call a convention would require that it call the limited convention the States requested.

Two arguments are typically presented to support the view that the States are unable to limit the scope of a constitutional convention. First, commentators suggest that the text of Article V precludes the States from limiting a convention.[64] Second, some have argued that the States have no constitutional grant of power beyond initiating a convention; thus, once a convention has been called, it is a federal proceeding beyond their control.[65] The textual argument against the power of the States to limit a convention is based on revisions of the word “amendment,” changing it from singular to plural, in early drafts of the Constitution at the Philadelphia Convention, with the final text allowing states to apply for “a Convention for proposing Amendments.”[66] It is inferred that this change was intended to preclude the States from limiting a convention to the discussion of a single issue or amendment, meaning that the States could call only a general convention.[67] This argument fails, however, because the same plural is used to specify the method for Congress to propose amendments: Congress “shall propose Amendments.”[68 The change from “amendment” to “amendments” in the Convention Clause was made after the plural usage for congressionally proposed amendments was added.[69] The two clauses have similar language, stating that Congress “shall propose amendments” and that the States may apply for a “Convention for proposing amendments.”[70 The common practice for Congress to limit itself to proposing single amendments on single issues at a time has never before raised any constitutional issues. It therefore makes more sense to in‐

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64. See Van Sickle & Boughey, supra note 4, at 27–28, 45–46.

65. See Connely, supra note 23, at 1021.

66. U.S. CONST. art. V.

67. Van Sickle & Boughey, supra note 4, at 27–28, 45–46.

68. U.S. CONST. art. V.

69. 2 RECORDS OF THE FEDERAL CONVENTION, supra note 5, at 555, 602, 629–30.

70. U.S. CONST. art. V.

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terpret the change of the word “amendment” to a plural form to mean that a convention has the same power as Congress to propose amendments, rather than being limited to proposing single amendments. Thus, a convention may propose multiple amendments just as Congress can, but it may also propose single amendments. This language should be read as expanding the possible roles of a convention, rather than limiting them. A convention can consider multiple issues and propose multiple amendments or be limited to a single issue. The history of the drafting of the Convention Clause at the Philadelphia Convention shows that the Clause’s accepted meaning at the time was that the applications by the States to Congress could be limited and could thus limit the subject matter of a convention. At one point in the drafting process, the Convention removed the language granting States the power to apply for a convention and instead gave Congress the power to propose amendments whenever it would “deem necessary, or on the application of two thirds of the Legislatures of the several states . . . .”[71] This language is nearly identical to the Convention Clause language in Article V that requires Congress to call a convention “on the Application of the Legislatures of two thirds of the several states.”[72] The draft language surely meant that the States could make applications to Congress to propose amendments on specific issues. If the draft language meant that the States could make only a general application to Congress for amendments, presumably the applications would not be permitted to give notice to Congress of the specific subject matters that the States desired be addressed in the amendments. The clause would serve little purpose beyond notifying Congress that two‐thirds of the States thought that some unknown changes to the Constitution were desirable. Moreover, there would be no point in allowing the states to make a general application in this context, because Congress would have the general authority to propose amendments regardless of whether two‐thirds of the States had made applications. The similar language in the final version of Article V to the earlier draft language should thus be interpreted to have the same meaning: the States may make limited applications.

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71. 2 RECORDS OF THE FEDERAL CONVENTION, supra note 5, at 555, 559; see supra Part II.A.

72. U.S. CONST. art. V.

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The second argument—that the States have no power beyond initiating a convention—is partially correct. They do, however, have indirect authority to limit the convention. Congress’s obligation to call a convention upon the application of two‐thirds of the States is mandatory, so it must call the convention that the States have requested. Thus, Congress may not impose its own will on the convention. As argued above, the purpose of the Convention Clause is to allow the States to circumvent a recalcitrant Congress. The Convention Clause, therefore, must allow the States to limit a convention in order to accomplish this purpose. The prospect of a general convention would raise the specter of drastic change and upheaval in our constitutional system. State legislatures would likely never apply for a convention in the face of such uncertainties about its results, especially in the face of a hostile national legislature.[73] States are far more likely to be motivated to call a convention to address particular issues. If the States were unable to limit the scope of a convention, and therefore never applied for one, the purpose of the Convention Clause would be frustrated.   A related concern is whether States’ applications that are limited to a particular subject should be considered jointly regardless of subject or tallied separately by subject matter to reach the two‐thirds threshold necessary for the calling of a convention.[74] This is an important question because if all applications are considered jointly regardless of subject matter, Congress may have the duty to call a convention immediately based on the number of presently outstanding applications from states on single issues.[75] If the above arguments about the States’ power to limit a convention are valid, however, then applications for a convention for different subjects should be counted separately. This would ensure that the intent of the States’ applications is given proper effect. An application for an amendment addressing a particular issue, therefore, could not be used to call a convention that ends up proposing an amendment about a subject matter the state did not request be addressed.[76]

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73. These fears, however, are mitigated by the States’ own powers over ratifica‐ tion. See infra Part III.C.

74. Paulsen, supra note 3, at 737–43.

75. Id. at 764. Paulsen counts forty‐five valid applications as of 1993.

76. If it were established that applications on different topics are considered jointly when determining if the two‐thirds threshold has been reached, states would almost certainly rescind their outstanding applications to prevent a general

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It follows from this argument that Congress’s ministerial duty to call a convention also includes the duty to group applications according to subject matter. Once a sufficient number of applications have been reached, Congress must call a convention limited in scope to what the States have requested.

C. Can a Constitutional Convention Exceed its Scope?

The United States’ last experience with a constitutional convention was the Philadelphia Convention of 1787, which plainly exceeded its mandate of revising the Articles of Confederation.[77] Thus, there are well‐founded concerns about whether a modern convention with a limited mandate would exceed its original scope and radically alter the Constitution, adopt undesirable amendments, or lead to constitutional upheaval.[78] It would be difficult for any governmental body to enforce a limitation on the convention, especially given that a constitutional convention, once created, could conceivably claim independent authority as a separate constitutionally authorized body.[79] There is little reason to worry, however, because even if a convention attempted to exceed its scope, or if it were accepted that its scope could not be limited by the States or by Congress, the convention is only the first step in the amendment process. The proposed amendments must still be ratified by three‐fourths of the States, which is an even greater number than the proportion required to call a convention in the first place.   The ratification process itself is the means of enforcing a subject‐matter limit on a convention. If the convention proposes

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constitutional convention. Some states have already acted based on fears of a gen‐ eral convention. For example, in 1999 the Idaho legislature adopted a resolution rescinding all of its outstanding applications for a constitutional convention. S.C.R. 129, 1999 Leg. (Idaho 1999). Georgia passed a similar resolution in 2004. H.R. 1343, Gen. Assemb. 2004 (Ga. 2004). Both resolutions were motivated by a fear that a convention could exceed its scope and propose sweeping changes to the Constitution.

77. See Shawn Gunnarson, Comment, Using History to Reshape the Discussion of Judicial Review, 1994 BYU L. REV. 151, 162 (1994); see also Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62 U. CHI. L. REV. 475, 480–83 (1995) (stating that, although the delegations from several states were specifically limited to only revising the Articles of Confederation, others were given broader mandates to make other constitutional proposals, but that even these states’ delegates ex‐ ceeded their broad mandate by proposing new means of ratifying the Constitu‐ tion rather than using “existing institutions and procedures”).

78. See supra note 38 and accompanying text.

79. Van Sickle & Boughey, supra note 4, at 42.

1020 Harvard Journal of Law & Public Policy [Vol. 30

extra amendments, they would only be adopted if the legislatures or ratifying conventions in thirty‐eight states agree. If an amendment receives such widespread support, there should be little reason to worry; ratification in thirty‐eight states would have proven its popularity. Most of the States that originally requested the convention would have to ratify an extra amendment for it to become part of the Constitution, thereby legitimizing the convention’s actions. The ratification process itself is thus the Statesʹ means of enforcing a subject‐matter limit on a convention. If the States determine that the convention exceeded its scope, they can refuse to ratify the proposed amendments.

IV. THE MODERN SIGNIFICANCE OF THE CONVENTION CLAUSE

One may question the Convention Clause’s significance, since it has never been used to amend the Constitution. The Convention Clause has played an important role, however, in spurring Congress to amend the Constitution.[80] Over the last forty years, state efforts to call a constitutional convention have come within one or two additional states of success.[81] More‐ over, a constitutional convention has tremendous potential as a way of proposing amendments that would enjoy significant popular support but that have not been proposed in Congress. A national survey conducted by Harris Interactive in 2005 measured support for different hypothetical amendments. The survey showed that seven potential amendments received the support of sixty‐four percent or greater of the population.[82] The three most popular proposed amendments were a balanced budget amendment, an amendment requiring that judges only interpret and not make the law, and a congressional term limits amendment. The results are summarized below in Table 1. Four of the seven popularly supported amendments arguably share a common characteristic: they would adversely affect the power or interests of members of Congress.[83] The high percent‐

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80. See supra Part II.B.

81. Id.

82. Arthur H. Taylor, Fear of an Article V Convention, 20 BYU J. PUB. L. 101, 124– 31 (2006).

83. A balanced budget amendment would make it more difficult for members of Congress to use government spending to benefit their constituents in exchange

No. 3] Constitutional Convention Amendment Process 1021

age of support that these amendments enjoy shows that the convention method for amending the Constitution is still relevant. There are issues that enjoy widespread popular support in the country, but on which Congress has failed to act. Two‐thirds of Congress is unlikely to approve amendments that significantly limit the power of its members, such as a balanced budget or term limit amendment. The Convention Clause provides an important means to adopt—or force Congress to adopt— amendments that are perceived to be in the national interest by significant percentages of the American population, but that are detrimental to the interests of members of Congress.

Table 1:

Percentage Support for Different Proposed Amendments to the Constitution V.

Subject Matter Percent Supporting Percent Opposing

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Balanced budget amendment 76% 18%

Require that judges interpret the laws and not write them 74% 20%

Term limits on Senators or Representatives 71% 23%

Prohibit Congress from passing laws affecting state governments

unless Congress gives the funding needed to pay for those laws 69% 22%

Permit prayer at school meetings or ceremonies 67% 29%

Allow Congress to regulate the amount of personal funds

a candidate may spend in a campaign 65% 29%

Define marriage in all states as the union of a man and a woman 64% 32%


V. CONCLUSION

The history of the convention method of amending the Constitution is filled with much confusion and debate about its meaning, proper application, and scope. One of the major reasons it has never been used is the prevalence of doubts and concerns about the limitations that could be placed on a convention. The convention method of proposing amendments may never realize

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for political support. Term limits would limit the tenure of members of Congress and force many of them out of office. An amendment prohibiting unfunded man‐ dates that affect the States would limit Congress’s power to control the States. Regulation of personal funds spent during a campaign would interfere with the campaigns of wealthy members of Congress.

Ed.Note: This should put to rest any lingering fears about an article V Convention petitioned for by the States, and should be the definitive source to dispel all the mis-information being spread around.

The Founders Wanted a Laser-Targeted Article V Convention

Dear Reader:

Before getting to the subject of today’s email, I wanted to let you know some exciting news: under the leadership of Representative Yvette Herrell, the State of New Mexico has filed the Compact for a Balanced Budget bill!

At this moment, that means seven states are moving forward to join with Alaska and Georgia as members of the Compact! We are anticipating between five and thirteen more states will be joining the push over the next several weeks. And we also expect big news on the Congressional side. Stay tuned.

Apart from such breaking news, this email is part 8 of the 8 part series that has advanced Founding-era evidence that the Article V convention was meant to be laser-targeted by the states to desired amendments specified in their application to Congress.

Today’s final post summarizes what has been established. It also explains how Compact for America views its initiative in relation to other broader agenda Article V efforts.

Check it out:

http://www.compactforamerica.org/#!The-Founders-Wanted-a-LaserTargeted-Article-V-Convention-Part-8-of-8/c213a/54cce4db0cf26e5660860840

PS. If you missed Exhibits A through G, here they are:

http://www.compactforamerica.org/#!The-Founders-Wanted-a-LaserTargeted-Article-V-Convention-Post-1-in-a-Series-of-8-Postings/c213a/51C518A3-C49D-46DE-BA45-AC6611F5DE32

http://www.compactforamerica.org/#!The-Founders-Wanted-a-LaserTargeted-Article-V-Convention-Part-2-of-8/c213a/802A423D-6242-4A38-A6FA-31AA5C28FA39

http://www.compactforamerica.org/#!The-Founders-Wanted-a-LaserTargeted-Article-V-Convention-Part-3-of-8/c213a/FB8345C7-3AD8-4265-B58C-8DB1EFFBD1D5

http://www.compactforamerica.org/#!The-Founders-Wanted-a-LaserTargeted-Article-V-Convention-Part-4-of-8/c213a/B43D8ABE-F9B7-49E4-86CE-7A322D1B97CF

http://www.compactforamerica.org/#!The-Founders-Wanted-a-LaserTargeted-Article-V-Convention-Part-5-of-8/c213a/5CBC2B7E-A777-441C-93E2-16E592C27B8B

http://www.compactforamerica.org/#!The-Founders-Wanted-a-LaserTargeted-Article-V-Convention-Part-6-of-8/c213a/AB468955-F7D0-4A5F-B0B8-48449ABE779B

http://www.compactforamerica.org/#!The-Founders-Wanted-a-LaserTargeted-Article-V-Convention-Part-7-of-8/c213a/54c0827f0cf2ad5dc6c2a147
___________________________________
Nick Dranias
President & Executive Director
Office of the President
Compact for America Educational Foundation, Inc.
Email: Nick.Dranias@CompactforAmerica.org
Website: www.CompactforAmerica.org
Profile: https://www.linkedin.com/in/nickdranias

Compact for America Educational Foundation, Inc. (the “Educational Foundation”) is a not-for-profit tax-exempt educational organization formed under section 501(c)(3) of the Internal Revenue Code and is recognized as such by the Internal Revenue Service pursuant to the IRS determination letter dated October 1, 2014. Additionally, the Educational Foundation was retained to serve as the Compact Administrator for the Compact for a Balanced Budget by the Compact for a Balanced Budget Commission on January 13, 2015. The Educational Foundation is formed primarily to educate elected officials, citizens and residents of the United States and the several states of the use of an interstate compact agreement and counterpart federal legislation to coordinate the use of Article V of the U.S. Constitution by state legislatures and the US Congress to originate, propose and ratify constitutional amendments. Accordingly, the Educational Foundation serves as a pro-bono technical advisor providing procedural guidance to various state legislators, compact commissioners, compact commissions, members of Congress, state governors, and interested citizens on matters related to the development, education, evaluation, enactment and implementation of related interstate compact agreements. Further, as the Compact Administrator of the Compact for a Balanced Budget, the Educational Foundation and its officers are serving as public officials at the direction of the Compact for a Balanced Budget Commission and therefore exempt from lobbying registration under most state laws. In the foregoing capacities, nothing in this message should be construed as an attempt to influence legislation. The only Compact for America entity authorized to influence legislation either directly or by way of grassroots calls to action is Compact for America, Inc. ("Compact for America Action"), which is a not-for-profit tax-exempt social welfare organization under section 501(c)(4) of the Internal Revenue Code and recognized as such by the Internal Revenue Service. The Educational Foundation is making every effort to ensure its operations are not confused with those of Compact for America Action. If you believe that this message constitutes an attempt to influence legislation, which is not our intent, please immediately advise us and we will ensure all clarifying steps are immediately taken, including further express disclaimers as needed. Any distribution of this message by any person who is not the intended recipient is strictly prohibited. If you have received this message in error, do not read it. Please immediately notify the sender and delete it. Thank you.

Comparing an Article V Convention to a National Party Convention is Absurd

Some alarmists are comparing an Article V convention to the Republican and Democratic National Conventions. The argument is that an amendments convention can be manipulated or stampeded just as a national party convention can be.

The comparison is absurd—so much so that it shows mostly a lack of knowledge of the Article V process.

First, consider the national party mob scenes. The 2012 Democratic convention had 5554 delegates; the GOP conclave 2286. To forestall any stampede, each was tightly time-limited and controlled from the front. Most of the delegates were not particularly distinguished: They were selected for party loyalty and because they had agreed to support a particular candidate. They had little or no effective input.

Now contrast this with the practice of multi-state conventions.

America’s last general convention of states (Washington, D.C., 1861) had 132 commissioners. All were selected as their respective state legislatures determined. In practice, most were chosen either by the legislatures themselves or by governors with the consent of one or both chambers. The commissioners were certainly not at the intellectual level of our Founding Fathers, but they were a distinguished and sophisticated group. They successfully crafted a compromise amendment that, if ratified, might well have prevented the Civil War.

Of course, there are more states now than there were in 1861, so we can expect a bigger convention. But because each state has one vote, there is little incentive to send huge delegations.

How large is a modern multi-state conclave likely to be? History gives us a clue.

I have been able to identify 14 official multi-state conventions since 1776. (By “official” I mean that participation was authorized by the state legislature or, in the recess of the legislature, the executive.) The average size of each state committee has been about five. The median has been between three and four.

Thus, a reasonable estimate is that a convention for proposing amendments might contain about 250 commissioners—less than 5% the size of the Democratic National Convention. It could be even smaller if the states agreed beforehand to limit the size of their committees.
Because these commissioners will be selected by and responsible to their respective state legislatures, they, too, will be a seasoned group. They certainly will not be readily manipulated or stampeded.

Article V opponents need to stop fabricating objections and work to ensure that if a convention happens, it does so successfully.

http://constitution.i2i.org/2013/10/12/comparing-an-article-v-convention-to-a-national-party-convention-is-absurd/

What About that Warren Burger Letter Against An Article V Convention?

Groups opposed to calling an Article V convention often cite an old letter written by the late Chief Justice Warren Burger opposing such a convention. It is strange that those groups should be quoting Berger, because they also purport to oppose the liberal activism—notably the abortion decision of Roe v. Wade—practiced by the Court when Burger was Chief Justice. (Burger voted with the majority in Roe.)

As it turns out, however, Roe v. Wade offers us a hint as to why Burger would write a letter opposing a convention for proposing amendments.

Burger seems to have known very little about Article V. He wrote his letter well before the publication of modern research on the subject. Unlike Justices Rehnquist and Stevens, he appears never to have heard an Article V case. Supreme Court justices sometimes publish articles on issues they have researched, but the legal databases reveal nothing on Article V ever published by Burger. Indeed, his ignorance of the subject appears in the letter itself, which erroneously labels the gathering a “constitutional convention” and repeats the old myth the 1787 convention exceeded its authority.

So, why would he write so firmly about a procedure of which he apparently knew little? Again, Roe v. Wade offers a clue.

In the 1960s (before Burger was Chief Justice) the Supreme Court embarked on a course of extreme liberal activism. The Court’s decisions triggered repeated calls for constitutional amendments to overrule them. For example, Senator Everett Dirksen (R.-Ill.) led a very successful application campaign (33 states signed on) for a convention to partially reverse some of the Court’s edicts on legislative apportionment. In response, liberal defenders of the Court widely popularized the claim—repeated by Burger in his letter—that an Article V convention would be uncontrollable.

Contrary to some expectations, the Court continued to be nearly as activist after Burger became Chief Justice. Roe v. Wade is a premier example. That case, and some others, provoked more calls for constitutional amendments to curb what many believed was very arrogant bench.

Burger’s letter was written soon after he retired, but it essentially acknowledged that he had vigorously opposed an Article V convention while serving as Chief Justice also.

In other words, he was protecting his court from the only viable procedure the people could use to overrule it: the amendment procedure of Article V.

This was a natural impulse on Burger’s part. But it is hardly the kind of evidence that should persuade anyone on the merits of holding an Article V convention.

Particularly anyone who purports to oppose judicial activism of the kind represented by Roe v. Wade.

http://constitution.i2i.org/2013/11/02/what-about-that-warren-burger-letter-against-an-article-v-convention/

Link to the Burger Letter:
THE BURGER LETTER
http://leg.mt.gov/bills/2007/Minutes/Senate/Exhibits/jus71a15.pdf

In Addition to the Article Below

The article below: The Fallacies of Anti-Article V Advocates
Tim Baldwin explains it so much better than perhaps I do.
http://articlevprojecttorestoreliberty.com/not-a-constitutional-convention.html [You will have to scroll down to read the article.]

But I wish to weigh in also.

For those of us who think an Article V Amendment "proposing" Convention would lead to a runaway Constitutional Convention. think about what the Article V convention really is. I did not create the description of Amendment "Proposing" Convention; many real Constitutional scholars coined that definition as being the most correct.

The prime opponents of an Article V convention are the very same professional politicians in Congress who have used the amendment process to entrench themselves in the halls of power, and have usurped and stolen the states’ rights, by removing the original checks and balances the Constitution provided to prevent just such things as that from happening, through their exclusive Amendment additions.

These politicians and their scholarly toadies have been using Americans fears that it will "Open Up The Entire Constitution" That is a false premise geared to scare Americans into silence and complacency with what the self appointed rulers decide to do. One of the most Anti-Article V people is Publius Huldah, (http://publiushuldah.wordpress.com).

Here is what she thinks about the Article V Project site; In a quote from her own site she says; "A contemptible website which goes by the name, “The 28th Amendment Article V Project to Restore Liberty” has posted links to MY website thus creating the false impression that I am in agreement with their despicable, ignorant, wrongheaded, idiotic, evil, contemptible, clamoring for an Article V convention." Sounds to me she is more akin to the Progressives and their tactics than she is to her purported fight to restore Constitutional Law and the Republic. Maybe that's too critical but I don't take obnoxious attacks like this lightly.

Here is another quote from her own blog: "What Article V Really Says":
“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…” [Boldface mine]

Note that Congress “calls” the Convention. The States don’t “call” it – all they can do is apply to Congress for Congress to call it.   I see that she conveniently skips over the fact that the operative word "SHALL" in context in that statement, is a clear directive 'ordering' the Congress to call the convention, not Applying to have one, but in fact Ordering Congress to call one, even if Congress does not want to do that.

Then it is the states and the people themselves who propose Amendments with Congress relegated to the sidelines. I can see where this would scare the politicians because of the loss of control over their own power structures, and the potential the people would take back those usurped powers.

In another quote from her site, Publius sends out a dire warning:
Make no mistake: these evil people want to get rid of Our Constitution and replace it with a new Constitution which I promise you will not like. With this statement Publius eludes to the 'evil people' being anyone who wants to originate an Article V Convention, completely ignores the fact that 38 States must Ratify any New Amendment the same as if Congress proposed it.

This attitude as expressed is verging on deliberate fear mongering. The warning in that statement is not possible, because the original Constitution will not be opened up for change by an Article V Convention. Mainly because an Article V is not a Constitutional Convention!

So far all the changes to the Constitution have been at the behest of a Congress, and that has created a Constitution that we don't particularly like as far as Amendments changing it from its original intent to what it is now goes. Especially the 14th, 16th, and 17th Amendments that Congress itself proposed and had ratified, and that only have benefited expansion of the Federal Government and its invasive push into every aspect of American lives.

Most Constitutional Scholars agree that the Framers, when they added the provision for an Article V Amendment Proposing Convention, did so because they realized that Congress could not always be trusted to work in the best interests of the people. Within the last Hundred Years Congress has proven it has devolved to that viewpoint the framers had.

I will agree with the position that Publius has about restoring our Constitution by requiring Federal and State elected officials to obey the Constitutional laws or failing that, by electing someone who will do that. That covers only half of the problem we face. We are in the throes of a Constitutional Crisis right now and we have many elected officials who do not even care to pay lip service to the concept of Rule by Law as codified by the Constitution.

So, I contend we need to combine our efforts and Require Elected or Appointed Government Officials and entities, to obey Constitutional Law or replace them. However that does not correct the weakness that mankind has to grab more and more power for them. Knowing that we must also remove the critical Amendments Congress installed in the Constitution and prevents anything like them from being slipped past us again.

An Article V Convention is the way to start that process by proposing the stated 28th Amendment to repeal the 14th, 16th, and 17th Amendments. It could also be used to propose a properly worded Balanced Budget Amendment, A term limits for Congress Amendment, and even an Amendment that would remove all Federal gun laws and regulations that infringe on the Second Amendment and clearly state the meaning of Militia encompasses all American Citizens.

Most people will not see the reason for removing the 14th Amendment, so let me try and make a case for that.

Let’s read the Amendment in its entirety here for reference purposes:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

As everyone should know, the 14th Amendment was put in after the Civil War primarily to insure the rights of freed Black Slaves and guarantee them their rights as citizens. Surreptitiously it was enacted because it repealed the three-fifths compromise and would have given the Democrat Dominated Southern States much more power to enforce the doctrine of States Rights with the Federal Government kept to Constitutional levels.

The schism started when President Andrew Johnson who was an old style Jacksonian Democrat and Staunch States Rights supporter vetoed the 1866 civil rights Act, causing the pro strong central government supporters in Congress, to seek Constitutional guarantees for their agendas and starting the erosion of States’ Rights.

Let’s take section 1 first:
This section applies to the Anchor babies now and has since the 1965 Immigration act and automatically makes them citizens who pull in the mothers and eventually other Relatives. Usually the mothers are classic Illegal Aliens. This affects States rights because it skews the Congressional districts and causes seats to be lost by some States and gained by others. It also affects the Electoral College in the same manner. This is because the seats in the House of Representatives are fixed at a maximum of 435 (more information on this later).

Now one needs to see the 14th in its original light. The United States did not limit immigration in 1868 when the Fourteenth Amendment was ratified. By definition, illegal immigrants and their children's citizenship was nonexistent. Granting of automatic citizenship to children of illegal alien mothers is a recent, totally inadvertent and unforeseen result of the amendment, and the Reconstructionist period in which it was ratified.

However, it fit right in with the Progressive ideology of the LBJ administrations 'Great Society Concept' and is a crucial point of current immigration reform wanted by today's Progressives to maintain their voter supremacy.

The 14th Amendment was ratified in 1868 to protect the rights of native-born and recently freed Black American Slaves. It was written like it was, to prevent state governments from denying citizenship to blacks born in the United States. Since the United States had no immigration policy, there was no reason for it to be addressed in the amendment.

The intent of the amendment was explained by Senator Jacob Howard in 1866 who said , "Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country." Notice the separate definitions he exempted that modern day politicos have deliberately misinterpreted and included that led to the fiasco with 'Anchor Babies'? Specifically, Foreigners, Aliens, and those who belong to families of Ambassadors or Foreign Ministers are thought of here.

In agreement with this doctrinal explanation, Senator Edward Cowan stated; "[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word..." this in and of itself should have been enough to stop the Progressive deliberate misinterpretation of the limits of the amendment.

Let’s look at the Supreme Court Decision on this from that time period. Over a hundred years ago, the Supreme Court ruled the restricted interpretation of citizenship in the 1884 Elk v.Wilkins case, the phrase "subject to its jurisdiction" was interpreted by the Court to exclude "children of ministers, consuls, and citizens of foreign states born within the United States." (Bold type and underlining mine).

In actuality, the Court ruled the status of the parents determined the citizenship of the child. To qualify children for birthright citizenship under the 14th Amendment, parents must owe "direct and immediate allegiance" to the U.S. and be "completely subject" to its jurisdiction. Effectively, they must be United States Citizens.

This ruling was again reaffirmed by The Citizens Act of 1924, enacted to address the American Indian citizenship that was denied in the 1884 Elk v Wilkins case, and codified in 8USCSß1401, provides that: The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States and subject to the jurisdiction thereof; (b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.

Currently in deference to the 1965 Immigration Act the status of citizenship is conferred on the children born here of illegal immigrant mothers. While this is current practice, this practice has never been ruled on by the Supreme Court.

Next, let’s look at how the 14th Amendment directly affects States rights with the misinterpretation of section 1 taken into account.

I assume everyone knows about how apportionment works. But here is a brief synopsis; The US Census has been used since 1790 as the basis for the United States representational form of government. As the population grew the number of members of the House of Representatives grew. In 1911 the maximum number of Representatives was fixed at 435.

Using the current census districts are reapportioned every ten years. The numbers of Districts apportioned to the States are made in accordance with Title 2 of the US code. During the 1960's, the Supreme Court ruled on many cases that Congressional and State districts needed to be essentially equal as far as population numbers go. In 1964 is Westbury v Sanders those Congressional district boundaries were based solely on population.

Here is how the misinterpretation of the 14th Amendment affects States rights and the rights of citizens to have the concept of one person one vote. So based on population and the fact that the maximum number of seats is set at 435 if a State gains a district due to population expansion another state will lose a district.

Now we come to the crux of the matter. States with larger illegal populations will usually end up with more districts, and that dilutes the votes of States with lower populations. This is really important in Presidential elections because the Electoral College is based on the size of the Congressional Delegations.

As an example, in 2000 the number of illegals in different States caused Michigan Indiana and Mississippi to lose one seat and Montana to not gain a seat. In fact nine seats were redistributed That is one of the ways that the 14th Amendment infringes on states’ rights and affects Americans negatively.

First see (http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights).
This was the first power grab by the federal government to nullify States rights and Prima Facie it looks like a good requirement, but in practice it is used to suppress the will of the people of a state through legal force. It was also the precedent that allowed the Federal Government to ban Christmas Displays or the Ten Commandments from all government property, and is being used in common core school indoctrination, to prevent school children from displaying Christmas Cards. It even allowed Madelyn Murray O'Hare to get prayer banned in schools.

Next see (http://en.wikipedia.org/wiki/Substantive_due_process).
This gives the Federal Government the right to protect 'fundamental' rights the Supreme Court recognizes as those enumerated in the Constitution and existing prior to the United States coming into being. Again Prima Facie they are right and proper, unfortunately because of the 14th they can be manipulated to serve another purpose, such as allowing for guilty parties being set free because of a technicality or of an honest mistake in procedure during an arrest, and even ignoring valid evidence because of improper (by fiat Supreme Court decree) collection procedures.

Next see (http://en.wikipedia.org/wiki/Procedural_due_process#Procedural_due_process).
Procedural due process is also contained in the 14th Amendment and basically is the concept of Fundamental Fairness equally applied to everyone. In 1934 the Supreme Court ruled (Snyder v, Massachusetts, 291 U.S. 197,105 (1934)) that " If a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental". Who usually makes the decisions on what is so rooted? I'll give you a hint; It's not the States.

Finally to back up a bit, in 1873, a Supreme Court essentially nullified the key language of the 14th Amendment that guaranteed all "privileges and immunities" to all US persons, in a series of cases called the Slaughterhouse cases. In so doing, they set up a system that allowed post-emancipation racial discrimination to continue largely unabated.

Seeing the 14th Amendment has been used contrary to its purpose and used to enhance growing the Federal Government authority over the States you can see why it needs to be repealed to remove that legal hammer from the politicians who had not been intended to have it in the first place.

So as I see it, the people who fear an Article V Amendment Proposal Convention have no reasons to fear it because it is ultimately governed the same way a Congressional Amendment Proposal convention is governed with 3/4 of the States required to ratify any proposed Amendment. With the proliferation of Socialist leaning representatives in congress what makes those people not fear that an even smaller and more easily controlled and organized group would not stoop to change that Constitution into something the people would hate. In my estimation, we need this to restore balance.

There is even talk of repealing the term limits for the President so Obama can keep running until he loses an election. What would stop the Congress if it again had a Super Majority of Progressive Gun Grabbers deciding to propose an Amendment to restrict the Second Amendment through an Amendment that would classify Militia as a federally controlled and sponsored group for Constitutional purposes and eliminate private ownership of guns?

The fact remains, we need to do something quickly that will reasonably insure the brakes are put on further Federal Government expansions, and start the process of stripping the usurped powers and returning them to the States. The Constitution was never intended to restrict the states; it was formed to restrict a Central/Federal Government from unilaterally expanding its size and powers.

The most reasonable and certain way to do that is to order Congress to call an Amendment Convention and then step back and let the people decide what needs to be corrected to support the people's interests over the needs of the federal government.

Discussions on this topic:
http://americanlibertyriders.ning.com/forum/topics/for-those-who-fear-an-article-v-amendment-proposal-convention
http://teapartyorganizers.ning.com/forum/topics/for-those-who-fear-an-article-v-amendment-proposal-convention
http://recoveringfromchange.ning.com/forum/topics/for-those-who-fear-an-article-v-amendment-proposal-convention
http://teapartyorg.ning.com/forum/topics/for-those-who-fear-an-article-v-amendment-proposal-convention?xg_source=activity
http://teapartypatriots.ning.com/forum/topics/for-those-who-fear-an-article-v-amendment-proposal-convention
http://www.teapartypatriots.org/groups/national-news
http://wethepeopleusa.ning.com/forum/topics/for-those-who-fear-an-article-v-amendment-proposal-convention

The Tradesman

The Fallacies of Anti-Article V Advocates

by Tim Baldwin

I am honored that Dr. Edwin Vieira took time to respond to my latest article, I Want a Real Liberty Movement.

In his article, “Enforcement, Not Amendment, Is the Answer”, Dr. Vieira claims that using Article V to restore our federal republic is not what we should be pursuing. Among the regular writers on NewsWithViews who join him are JB Williams and Publius Huldah. However, they make some fundamental errors, as I explain below.

Introduction
The arguments used against Article V are simply these:

Article V permits a “runaway” convention; and
All we need to do to restore the Constitution is enforce it.

Both of these conclusions are wrong and should be rejected as a basis not to use Article V to limit federal power.

Under the first argument, opponents of Article V attempt to scare patriots into believing that if we use Article V to limit the federal government’s power, we will get a worse constitution. They even argue that we would get an entirely different constitution (but do not explain how the states would ratify one.)

They begin by incorrectly using the term “constitutional convention” or “Con Con” to describe Article V. This not accurate but is meant to lead people into fear. As constitutional scholars have rightly stated, “the term ‘constitutional convention’ is misleading; it would be more accurate…to call it an ‘amendment-proposing convention’.”[1] In fact, one of the purposes of the Article V convention is precisely to avoid any need for a constitutional convention.

As Hamilton explained:

There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution.

Under the second argument, opponents of Article V point to other remedies they claim will “restore” the Constitution, such as nullification and the militia. However, no other remedy can change our federal jurisprudence and none will have nearly the same impact on restoring liberty as Article V.

Publius Huldah (PH) exemplifies mostly the first argument, and Dr. Vieira and JB Williams mostly exemplify the second.(But each expresses both in one form or another.). I will address their articles in that order.

Publius Huldah
PH misstates history, ignores constitutional law and scholarship and uses logical fallacies to oppose Article V. Plus, PH’s article is full of sensationalism and fear-mongering. PH mostly feeds the hype of those who are already predisposed to opposing Article V.

I need not go into the errors of law and scholarship about Article V because other constitutional scholars have done this. Most notably, Rob Natelson has devoted much to Article V scholarship and has shown how PH and others are wrong to claim that (1) Article V allows for a “runaway” convention and (2) would result in a “runaway.” PH article cannot be compared to Rob’s work on Article V and is not entitled to the same weight of consideration. (Go to Rob’s website here.)

When one studies constitutional scholarship on the matter, he will find this conclusion stated similarly:

The framers did not intend the article V convention to deal exclusively with circumstances like those that confronted the republic in 1787. On the contrary, the concerns that led to the insertion of the convention alternative were far simpler and narrower.

They were, in short, that Congress could not always be trusted to do what was best for the country, and that when it was a practice of Congress itself that gave rise to the need for amendments, some other body should be made available to the people to initiate changes to the Constitution. Subsequent practice under article V also supports this interpretation of the purposes of the convention alternative.[2]

PH’s conclusion to the contrary is certainly not the prevailing view of Article V among scholars.

Next, PH pushes the common fallacy that Article V opponents use. PH says,

Yes, they tell us, the only way to deal with a federal government which consistently ignores and tramples over the Constitution is …. to amend the Constitution! Do you see how silly that is?

So, which amendment is PH saying Congress does not follow? What original constitutional provision is PH saying Congress does not follow? PH does not say; nor could she, because this would require her to prepare a legal opinion on a particular issue given a certain fact scenario—just like the judicial opinions are rendered in each and every case that have explained congressional power. Her attempt would only confirm and show how judicial decisions create constitutional jurisprudence—the body of law applying the Constitution.

The reality is, the federal judiciary puts flesh on the bones of the Constitution created in 1787. James Madison explained how this works in the Federalist Papers. He showed that the Constitution would not be definite in terms of “what is constitutional” except through the test of time and experience. It was “particular discussions and adjudications” that decisively established what the Constitution would mean over time. The Constitution’s meaning did not somehow self-evidently appear to the minds of all people, as if the constitutional term “regulate commerce among the several states” is as clear as the “Age of thirty five years.”

One important role of the amendment process is to correct judicial errors, just as the Eleventh Amendment corrected the Supreme Court’s decision in Chisholm v. Georgia and the Fourteenth Amendment correct Dred Scott v. Sandford. Nullification cannot do this; only Article V can. Specifically, it can correct the modern line of Supreme Court decisions that had ceded nearly-unlimited power to federal officials.

In fact, Madison’s description of constitutional law shows that Article V is the only way to correct federal jurisprudence and the “just enforce the Constitution” argument is fallacious and distractive. Madison said in FP 37,

All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas….

But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered.

The Founders explained that the federal judiciary was going to be the arbiters of the “lines of sovereignty” between the States and federal government. Madison explained this further in FP 39, saying, “It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government.” Madison also explained that this role of the federal judiciary “is clearly essential to prevent an appeal to the sword and a dissolution of the compact.” (FP 39.)

This meant that the judiciary’s decision was designed NOT to invoke the States to resistance but to keep them from appealing to arms and dissolving the union. In other words, the States should not take up arms against the federal government when the federal judiciary is the constitutional process by which the States object to congressional power. By their nature, judicial decisions are permanent until changed by a higher court—or by the people, through Article V.

As the federal judiciary was to prevent the States from appealing to the sword, so too Article V was to prevent an appeal to the sword. The only time arms were purported to be necessary was when Congress uses military force to destroy the States. In that case, Hamilton raises the natural right of self-defense in FP 28, saying,

If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government.

Certainly this remedy was considered the last remedy, not the first. It especially was not to be highlighted as a means of defense before trying to remedy the problems through Article V.

Too, in such a dire situation of having to use force (i.e. self-defense, Militia), the union would be dissolved anyway and the States would be forced to a constitutional convention for the purposes of (1) dissolving the political bands they have with the States causing their demise and (2) reestablishing the constitutional terms that govern their (new) union. Such would be inevitable and necessary for the survival of those States. Who would prefer this dire event take place before the States have an opportunity to limit federal power through Article V and an opportunity to keep the union intact?

Thus, nullification is not the ticket to fixing federal jurisprudence. How can this correct jurisprudence? It cannot. Moreover, conservatives do not even agree as to the constitutionality of “nullification.” Given our nation’s history on the subject, nullification will never be the complete answer to federal encroachment. Plus, if nullification were the answer to constitutional problems, there would be no need for Article V. Looking at the Federal Convention Debates of 1787, the Founders highlighted Article V, not nullification, as the States’ method of correcting federal actions.[3]

Using PH’s own description of a “disobedient” federal government, she should embrace Article V because the Founders created Article V for that reason. Under PH’s logic, the Founders should have never included Article V. But they did, for precisely the reasons we seek to invoke it now. Yet, PH calls using Article V “idiotic.” In doing so, she condemns the Founders as “idiotic.” If the States follow the logic of PH, we will be our own worst enemies of a true liberty movement that will have the effect of permanently limiting Congress’ ability to regulate in all cases whatsoever and will prevent an “appeal to the sword,” which Madison expected we do.

Dr. Edwin Vieira
Dr. Vieira uses similar reasoning as PH. To save the reader expense, Dr. Vieira—essentially—uses the argument that “there is nothing wrong with the Constitution; the federal government is simply disobedient.” He says,

if this [federal] jurisprudence is actually a false jurisprudence, then it has nothing to do with the Constitution ab initio, except to violate it; and therefore some remedy other than amendment of the Constitution would be called for.

All my responses to PH’s similar statements apply here.

Additionally, Dr. Vieira merely states a truism—that whatever is unconstitutional is null and void. Thus, he concludes that any federal judiciary decision that is unconstitutional is “false jurisprudence” and no amendment is needed. However, he completely leaves out the fact that the federal judiciary is charged with that duty and overlooks the nature of our constitutional system: that federal jurisprudence makes up our constitutional law.Once the jurisprudence (on a particular issue) is cemented, the States’ primary recourse to correct that is through Article V.

Next, Dr. Vieira turns to the “practicalities of the process of amendment” to oppose Article V. Dr. Vieira creates scenarios for which there is no end, remedy and answer—as if America and even the world have no history or experience of how to run an interstate convention. This ignores the reality of our own experiences—successful ones! There were numerous federal conventions before and during the Founding Era, and several in the 19th century as well. This is a process we know how to use.

Moreover, there have been many conventions within individual States. They do not result in the annihilation of their constitutions, societies and liberty. In fact, one could argue that more—not less—individual liberties have been recognized and protected in updated state constitutions. All of these experiences and scholarship—including our own normal legislative procedures—shed light on the reality that contradicts Dr. Vieira’s chaotic presentation of a “black hole” amendment convention.

What is more, if Dr. Vieira can propose that such a chaotic event results from Article V, how can he claim that the rest of the Constitution is so rigid and self-evident that it is not subject to divergences of order and absolutes? How is the commerce power so crystal clear, yet Article V so impervious to known factors and procedures?

If the commerce power can be so easily defined that any person (including those who do not have multiple degrees from Harvard) can interpret it without contention, how does Article V fall outside the realm of normal modes of interpretation and enter into the mysterious world of unknowns? In reality, Dr. Vieira’s interpretation of Article V only confirms what James Madison said (above) about the judiciary’s role in deciding the “particulars” to explain the Constitution. It is the particulars of “case law” that have brought us to our point today, which is remedied through Article V.

Ultimately, Dr. Vieira admits that an Article V convention would BENEFIT our situation considerably. He said, “if everything went according to plan (which raises an host of other questions) a set of good amendments could, in principle, go far towards saving this country.”[4] INDEED IT COULD! But he argues against it because he claims “it would take five, ten, or even twenty years to see significant results.” Is this a bad thing? What does he expect to take place in less than five years?—war, destruction, collapse, mushroom clouds? The reality is, those kinds of events force constitutional conventions faster than any other.

He may be unduly pessimistic anyway: The last state application campaign for a convention, early in the 20thcentury, successfully forced an amendment in 14 years. But that was before the days of the Internet and most other modern methods of communication and organization.

Personally speaking, the time frame he proposes is VERY exciting—to think that we could change our country’s future in my lifetime! This fits nicely with Thomas Jefferson’s proposal that our Constitution be sent to an Amendment Convention once every generation (approximately 20 years) so that each could correct any errors of previous generations. Dr. Vieira only confirms the reality and hope that we could improve our country’s condition in ONE generation! Saying “we don’t have time” is not a reason to reject the only fundamental and peaceful remedy we have to changing federal jurisprudence and our future.

Dr. Vieira then argues that our attention should focus on the Militia. The purpose of this article is not to rebut his position. Certainly the Second Amendment was intended to “secure a Free State.” But how can one claim that it is impossible to get people to use their MINDS to restore liberty and then claim that the people will (or should) use WEAPONS to restore liberty? What is more likely? What is preferred? My view of human nature is that people prefer to use their brains before their blood to accomplish a goal. We should use, not oppose, this basic component of our existence.

Then there is the question that must follow the Militia-answer: THEN WHAT? If the States were to use militia force (and yes, it is force[5]) against the federal government or other States, would this not ultimately lead to a constitutional convention? It absolutely would. Even under Dr. Vieira’s theory of what is to come, we must do what other constitutional scholars have pronounced regarding Article V:

the time has come for academic lawyers to stop carping and bemoaning the possibility of a constitutional convention to consider the federal deficit. It is time for legal scholars to begin to think seriously about how such a convention should be structured and what its agenda and substance should be.[6]

We should use Article V for the purpose George Mason stated in the Federal Convention Debates of 1787. “To Mason, it seemed clear that the Constitution would require amendments from time to time, ‘and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence.’”[7]

JB Williams
JB Williams’ reasoning for rejecting Article V is contradictory and illogical. He states,

[Mark] Levin’s call for a Con-Con [in The Liberty Amendments] ignores the reality that our Founders placed everything needed to restore the Constitutional Republic in the U.S. Constitution and Bill of Rights and assumes that his ten new amendments will be an improvement upon the Founders work.

and

[Mark] Levin should realize that our Founders provided everything we need to restore our constitutional republic, if people would only stop trying to reinvent the wheel and stick to the basics.

These statements are particularly odd, because part of what the “Founders provided . . . to restore” our republic was Article V. They included it to allow the States to control an otherwise control-less federal government.Williams not only misses the obvious, but he attacks convention advocates for doing exactly what he says they should be doing! Williams also uses illogical formulas and misstated facts to argue against Article V. They follow.

In his numbers 1 – 4, Williams states that an amendments convention would be a matter of typical Republican-Democrat dynamic. He also states that the convention would be controlled by Congress. He is wrong on both points.

Of the States that have applied for the Balanced Budget Amendment, nearly half of them are Democrat-controlled. Despite what some attempt to portray about the Democrat-Republic paradigm, Republicans are not the only Americans who want less federal government. One sees how Democrats are much quicker than Republicans to denounce federal spying, privacy intrusions, needless “drug wars” and the like. This proves the point, and Williams puts too much stock in the Republican Party relative to Article V. To be clear, Article V will not be about Republican and Democrat politics.

Additionally, Williams ignores the evidence showing that, legally, Congress cannot control anything in the amendment convention. Williams also discounts that people who are and have been disenfranchised with normal politics will be invigorated to participate in Article V (including a large number of libertarians), becausethey will see it for what it is: a REAL way for the States to reign in federal power. This is not usual politics, nor is it intended to be. Therefore, each point is wrong and should not be used to reject Article V.

In his number 5, he states, “Ratification of any amendments that survive that process is even more difficult, requiring three-fourths of the states or of congress to ratify.” Williams actually shows why Article V would NEVER be unlimited—it is WAY TOO DIFFICULT to get a consensus of the delegates and the States to ratify any amendment that was not patently needful to correct our jurisprudence.

And what remedy of liberty is not difficult? (Have these “liberty leaders” changed their political strategy fromprinciples to pragmatics?) That Article V is difficult shows how effective it can be to restore liberty. This means that the rewards will be equal to or greater than the work it takes to accomplish the liberty amendments. Williams’ number 5 should likewise be rejected as a basis for rejecting Article V.

In his number 6, he states, “The process could very well take years, during which time the nation will be hoisted into Civil War over the convention as we sink deeper and deeper into a socio-economic abyss.” What does time have to do with attempting to make the kinds of changes needed to avoid “Civil War”? And how can Williams predict such an Armageddon event? I have responded to the “time argument” of Dr. Vieira above, and it applies here.

Next, Williams claims that Americans are too dumb to know that we need less federal power. He points to the current Obamacare rivalry in Congress as his proof. This isolated and incorrect view of the political condition of the States is no compass to follow. Williams misses a fundamental point of political science—one that the Founders knew was inherent in the political system created by the Constitution. Political statesmen of 1787 knew that the people would have a different relationship to the federal government than to their states, which produces different results in those governments. Likewise, they knew the federal government would have a different relationship to the people than the state governments would have. All of this, of course, is based on human nature—psychology and sociology.

The way this distinction translates into political dynamics is simple: the farther away and bigger the government is in relation to the people, (1) the more susceptible they are to corruption, and (2) the less control the people have over the government. The Federalists explained the possibility of abuse this way, “The people can never wilfully betray their own interests; but they may possibly be betrayed by the representatives of the people.” Couple this with the federal judiciary’s “rubber stamping” Congress’ commerce and tax power, and the effect is worsened and deepened. This results: the federal government acts without regard to the people’s will—all the voting notwithstanding. As such, using federal laws to predict the content and results of Amendment Convention is unfounded.

Adding to the need of Article V, the Founders did not realize that the people’s power (which is inherently disorganized and diverse) would become overshadowed by the power and influence of lobbyists and other powerful entities (which are inherently organized and unified and thus more effective on legislators). In this sense,minority factions have more power over Congress than the whole of the people and States. If one brings into the equation the corruption of foreign influence, the people become even more remote in influencing Congress. This is not the case with Article V, which is a direct, grass-roots action of the people for a specific and limited purpose.

Williams then sets up a straw man to knock down by stating the following,

I agree that our government must be altered before abolishing it altogether is the only solution left. However, the Rights already belong to the people and their states. If two-thirds of the state legislatures had the good sense and backbone to stop the runaway Federal Government from destroying the entire nation, they would simply pass and enforce The Balance of Powers Act in their state and begin to stop unconstitutional acts by the Federal Government without any need for a Con-Con. (emphasis added)

Williams attempts to redefine 200-plus years of American history to judge the character of the States in reducing federal power. He states that if the States do not nullify federal law that they would not do so at an amendment convention. This mistakes a very large matter. This is like saying, if you do not marry a person of another ethnicity, you are racist. The truth is, even the most conservative of us do not necessarily believe that nullification is the answer—or even constitutional—just as people like Dr. Vieira do not believe secession is constitutional. Yet, those same people believe in (much) less federal power.[8]

That States have not passed “The Balance of Powers Act” does not mean they do not want to limit federal power.The litmus test of the States preferring less federal government is not in nullification, interposition or secession. The test is simply that they recognize the need to redefine certain federal powers. On this point, many liberals and conservatives alike agree. It cuts across party labels and ideologies. This is the beauty of Article V.

Then, Williams makes a lot of unfounded statements that are really unworthy of lengthy comment, such as, “Why don’t ‘constitutional experts’ follow the constitution instead of attempting to re-write it via a very dangerous and cumbersome amendment process, which they will never be able to control?” Using Article V IS following the Constitution to control a control-less federal government!

Williams continues his biased assessment by attacking Mark Levin, stating,

I’m afraid that the simple answer is that the advice offered is not intended to provide any realistic solutions, but rather to simply sell books to good people in desperate need of solutions.

Such a statement reveals that Williams is no statesman on this issue.

Lastly, Williams strangely concludes by stating Article V is not a power or act of the people. He says,

Too many “patriots” are searching for solutions from others like Levin, when it is the people themselves who are the only solution available. I’m starting to think that the purpose of such books is to keep the people in the bleachers awaiting the next book, while they could be taking appropriate actions on their own at the local level.

Williams fails or refuses to recognize that Article V is THE MOST fundamental movement of the people there can possibly be in our constitutional system. It would change the course of our constitutional history forever, just as Dr. Vieira admits. It would have the effect of undoing decades of federal judiciary decisions giving Congress seeming plenary power. All of the other remedies under the sun cannot accomplish such a task in such a fundamental and peaceful way.

Conclusion
In summary, those who use the two arguments stated above to oppose Article V have less ground to stand on than those who advocate its use to restore liberty. The time has come for patriots to embrace what our Founders gave us to remedy the kind of federal problems we are experiencing today.

If you appreciate Tim’s article, “like” him on Facebook and sign up for his articles atwww.libertydefenseleague.com.

[1] E. Donald Elliott , Constitutional Conventions and the Deficit, 1985 DUKELJ 1077, 1081-82, Duke Law Journal (December, 1985).

[2] Elliott , Constitutional Conventions and the Deficit, 1985 DUKELJ 1077 at1085.

[3] I recommend studying this book on the subject of nullification, interposition and secession. Cogan, Neil H.,Union & States’ Rights: A History and Interpretation of Interposition, Nullification, and Secession 150 Years After Sumter, (University of Akron , 2014). http://www.uakron.edu/uapress/browse-books/book-details/index.dot?i...

[4] Dr. Vieria observes that the PRINCIPLE of Article V is correct but argues the PRACTICE is not a good idea. This begs the question of whether patriots in the liberty movement should put practice over principle. As many are aware, many leaders in the “liberty movement” state that we are to never vote for a “lesser evil” because of the principle, regardless of what results. According to Dr. Vieira’s position on Article V, “liberty movement” patriots should begin using pragmatics and not principles to direct their decisions.

[5] That Dr. Vieira would say that using the Militia does not “require or entail violence” is meaningless because it ignores the very nature of a militia—“the right of the people to keep and bear arms.” The use of arms is the use of violence to “secure a Free State.” Militia’s purpose is not political, legal or otherwise peaceful in nature. So, while a Militia may not actually use force in a given situation, its purpose is to use force when necessary, and under what circumstance can one imagine a Militia not using force in a “Titanic” situation of society as presented by Dr. Vieira? And what world experience can he point to show that the Militia’s purpose does not require or entail violence?

[6] Elliott , Constitutional Conventions and the Deficit, 1985 DUKELJ at 1080.

[7] Elliott , Constitutional Conventions and the Deficit, 1985 DUKELJ at 1082-83, citing 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 121 (M. Farrand rev. ed. 1937).

[8] The book, Union & States’ Rights,[8] proves this point well.

http://libertydefenseleague.com/Articles/tabid/524/ID/436/The-Falla...

EXPLANATION – NOT A CONSTITUTIONAL CONVENTION

From Annapolis, to Philadelphia, to New York, to Washington, District of Columbia.

Short history of why there has NEVER been a Constitutional Convention:

Annapolis, Maryland:
Meeting of Commissioners to Remedy Defects of the Federal Government;
Met from September 11, 1786 to September 14, 1786.
New York Delegates: Egbert Benson and Alexander Hamilton
New Jersey: Abraham Clark, William Houston and James Schuremen
Pennsylvania: Tench Coxe
Delaware: George Read, John Dickerson and Richard Bassett
Virginia: Edmund Randolph, James Madison Jr., and St George Tucker

The meeting was to discuss reforming trade and commerce between States.

Because some invited members did not arrive in time for the meeting the delegates sent a report to Congress and each State asking to send delegates with authority to discuss more than just trade issues at the meeting in Philadelphia in May of 1787.

Philadelphia Convention:
Met from May 25, 1787 to September 17th 1787.
Meeting was sequestered for 84 days.
55 attending delegates from 12 States. Rhode Island did not send a delegation.
George Washington elected presiding delegate of meeting.
Final Draft was signed on September 17, 1787 and sent to each State for Ratification.
Take note: This was a Draft and not yet ratified yet, so in fact is not a Constitution, and because of that fact, Philadelphia was NOT a Constitutional Convention.

Congress in the City of New York:
Congressional certification of 11 States ratification of the Articles and the beginning date for the new government is March 4, 1789.
"Resolved by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz..

"Articles in addition to, and Amendment of the Constitution of the United States of America proposed by Congress and ratified by the Legislatures of several States, pursuant to the fifth Article of the original Constitution...."

The proposal of the first 12 amendments was on September 25, 1789 and final ratification of only ten Amendments was on December 15, 1791.
There was no call of a Constitutional Convention to Ratify these Amendments. Each State Legislature had to ratify and no convention was called between the State Legislatures to have such a convention to ratify.

Now the Constitution is complete.

On November 17, 1800 the 6th Congressional Session met for the first time in Washington, District of Columbia, John Adams was President.
Convention: 1. A formal assembly or meeting of members, representatives, or delegates of a group, as a political party. 2. The body of persons attending such an assembly. 3. General agreement on or acceptance of certain or attitudes. 4. A practice or procedure widely observed in a group, especially to facilitate social interaction: CUSTOM. 5. A widely accepted device or technique, as in drama, literature or painting.

I propose by the above stated definition that while Congress is in session it is a Convention. The subject of that convention is the Constitution, so by definition; while Congress is in session it is a Constitutional Convention.

So the question of a Constitutional Convention is in reality an every day occurrence while Congress is seated.

Is it an out of control Constitutional Convention?
With the passage of Laws that are not constitutional, and violate inalienable rights of its citizenry. By not impeaching or reining in a President that has extended his Constitutional authority in Article II. By the U.S. Supreme Court opinionating on Case Law and mandating a new tax system outside Constitutional restraints. I'd say that there is surely an out of control Constitutional Convention.

The corrective measure provided by the Founding Fathers, Framers and Ratifiers is within Article V, the very first application of that article resulted in the first ten amendments.

The Article V process calls for a ratification convention, not a Constitutional Convention.
cl/db

The (NOT A) Constitutional Convention

Even before Shays’ Rebellion, prominent Americans were thinking of means to strengthen the Articles of Confederation. James Madison and others met with George Washington at Mount Vernon in 1785, to discuss commercial issues relating to Virginia and Maryland.

One recommendation from that meeting was to convene a group of delegates from the states to discuss alterations of the Articles. Only five states sent representatives to Annapolis in the fall of 1786, but Alexander Hamilton’s recommendation to convene another reform meeting in Philadelphia in the spring of 1787, was forwarded to the Continental Congress.

Two ground rules would govern the convention proceedings.
1--First, all deliberations were to be kept secret. (Detailed word about the debates remained guarded until the publication of Madison’s notes in 1840.) 2--Second, no issue was to be regarded as closed and could be revisited for debate at any time.

The Convention convened on May 25, 1787, at the State House (now Independence Hall) in Philadelphia. It opened eleven days later than planned because of the slow arrival of some delegates. All of the states were represented except for Rhode Island, which declined to attend.

http://www.u-s-history.com/pages/h368.html

Why the 2 ground rules. These are some of the highlights I have found in research. I include a list of resources for all to study as they choose.

Madison's notes of 1840 give the best insight, having the details at the time kept secret was a deliberate decision. The purpose was not to exclude all the people from the process it was to address many concerns:

*it kept the people from becoming anxious and fearful of the outcome or the possibility of not reaching one,
* prevented mass argument and dissension over the many varied topics,
* not fully understanding the full context of the debates and implications of the topics, people might make uniformed opinions and conclusions,
* lacking the legal expertise, many people could not make a just or legal opinion *avoid the influence of public pressure, and warring opinions loosed upon the public.
The Founders feared that free common and public debate would reduce the process to chaos. They elected to determine the Founding document and to develop the most just and balanced system of government through the chosen representatives of the people who were the most learned and equipped to apply all of the necessary knowledge and who had the best expert opinion in areas being discussed and who could be best qualified to do this work in reasoning through the process.

Creating the U.S. Constitution, Constitutional Convention, 1787, Primary Sources for Teachers, America in Class, National Humanities Center

Creating a New Constitution
The members of the [constitutional] convention were certainly human, which is to say they were complex, unpredictable, paradoxical, compounded by rationality and irrationality, moved by selfishness and by altruism, by love and by hate and by anger—and by principle. If the convention succeeded, it was not simply because the members possessed a common economic or class interest but because they held common principles, principles learned in twenty years of British tyranny and American seeking, in colonial assemblies, in state legislatures and in Congress. . . . They agreed, to begin with, on the urgency of their task.
Edmund S. Morgan, The Birth of the Republic, 1763-1789 (1956)

When we study the Constitutional Convention of 1787, we know its ultimate outcome—a new plan of government that was ratified, implemented, and amended twenty-seven times; that is honored as a model for democratic self-government and is perpetually examined for its meaning in changing times. But in May 1787, the fifty-five men who convened in Philadelphia to save the fledgling nation had no guarantee of success. "Most of them were convinced," continues historian Edmund Morgan, "that unless they came up with an acceptable, and at the same time workable, scheme of national government the union would dissolve."1 A fearsome prospect. As you study the delegates' deliberations—the Virginia Plan vs. the New York Plan, the Great Compromise, the three-fifths compromise—and their final plan of government, consider the "urgency of the task" that propelled them through the summer of 1787.

"the great business now before us": commentary on the Constitutional Convention.

After meeting on ninety-seven days from May 25 to September 17, 1787, the convention submitted a new plan of government to the states for their approval or rejection. It had been an arduous and contentious process, sustained through debate and compromise—and the realization that failure to revise or replace the moribund Articles of Confederation could doom the new nation to "anarchy and confusion," as George Washington feared. Because the delegates agreed to keep their deliberations secret, little was known of their progress and setbacks until after the convention adjourned. Collected here are statements from nine delegates and nine non-delegates that reveal the anxious yet exhilarating summer of 1787, and the first months of the ratification debates. What new perspective on the Constitutional Convention and its final document do you gain from reading the commentary? What do you learn about the Founding Fathers? Which man would you most want to ask for application on his views and sentiments? (9 pp.)

"We the People": The United States Constitution, 1787. Five articles and 4,543 words, with some of the most familiar phrases in American history—We the People, a more perfect Union, the Blessings of Liberty, Advice and Consent, Full Faith and Credit, and supreme law of the Land. Other phrases remind us that the document is over two hundred years old, such as Corruption of Blood, Letters of Marque and Reprisal, and the finally struck three-fifths of all other persons. It takes about half an hour to read the U.S. Constitution, and perhaps an hour to study a well-annotated text.....

Supplemental Resources

The U.S. Constitution, annotated text Questions and Answers about the Constitution of the United States (National Archives)

The Constitutional Convention of 1787, overview by Prof. A. E. Dick Howard (U.S. State Department)

The Records of the Federal Convention of 1787, Max Farrand, 1911 (Library of Congress)

Selected Correspondence from the Summer of 1787 (Ashbrook Center for Public Affairs, Ashland University)

To Form A More Perfect Union (Library of Congress)

America's Founding Fathers: Delegates to the Constitutional Convention (National Archives)

The Constitution, History Now, Sept. 2007 (Gilder Lehrman Institute of American History) Alexander Hamilton: The Man Who Made Modern America (The New-York Historical Society)

Elbridge Gerry, letter to the Massachusetts Legislature on his objections to the Constitution, Nov. 1787 (Ashbrook Center for Public Affairs)

George Mason, Objections to this Constitution of Government, 16 Sept. 1787 (Gunston Hall)

General Online Resources

*PDF file - You will need software on your computer that allows you to read and print Portable Document Format (PDF) files, such as Adobe Acrobat Reader. If you do not have this software, you may download it FREE from Adobe's Web site.

http://nationalhumanitiescenter.org/pds/makingrev/constitution/text2/text2read.htm

5 Reasons Why a Constitutional Convention Is a Better Idea than Just Electing More Republicans

By Joseph Ashby
Mark Levin's new book The Liberty Amendments proposes that state legislatures use their Article V power to call a convention to propose new constitutional amendments for state ratification. The unorthodox process seems impractical at first -- it's never been used, it's off the mainstream political radar, few people even know it exists, etc. -- but a closer look reveals transformative advantages over the prevailing political strategies of the day.

1. Conservatives' Washington-centric focus has born little fruit.
America's news coverage and political mindset revolve around Washington D.C. and, by its nature, Washington D.C. revolves around big government. It is a culture that is embarrassed by constitutionalism, gravitates toward racial, gender, and ethnic politics, and works to convince conservatives to abandon their best ideas and arguments out of political fear.

The Potomac is poor ground for a constitutional battle.

2. Money and the establishment make it unlikely to get solid conservatives in federal office.

Winning U.S. Senate candidates spend an average of $10.4 million per race. The average successful House race costs $1.6 million. Citizens who can marshal such vast resources are rare. Rarer still is a candidate with such wealth who has developed political convictions strong enough withstand Washington's corrupting onslaught.

Non-megabucks candidates generally climb the political ladder slowly, building a fund-raising base as they go. Unfortunately, that method leads legislators to scratch innumerable backs on the way to the House and Senate. Each deal made, each unsavory compromise reached, each postponement of what they originally ran for in order to ensure a safe reelection dulls the conservatives' senses and leads to legislators whose only elite skill is winning another term.

Nowhere is this phenomenon more evident than the current Republican caucus of the US Senate. There are perhaps eight to 13 reliably conservative members in the entire group. Turning those 13 into 60 is a worthy goal, but given the shallow pool from which we have to draw, "elect more Republicans" appears to be a weak strategy.

3. Ideas like a balanced budget amendment are destined to fail in Washington, but remain popular around the country, even in blue states.
Because Democrats rely so heavily on government largesse both to appear compassionate and dole out dollars to their constituencies, a balanced budget amendment will likely never garner sufficient House and Senate support to pass. However, the amendment is very popular among the voters who would send those same big-spending Democrats to Washington.

4. Many State legislators still remember why they first ran for office
In what feels like a lifetime ago, a newly elected John Boehner charged into Congress as an anti-establishment reformer, quick to call out his more senior Republican colleagues for timidity. Over two decades later, Boehner now emulates the same establishment he railed against in his first few terms.

Just as in Boehner's case, time, adversity, and proximity to power change virtually all politicians. The idealism that accompanies so many young representatives is scarcely detectable by the time they arrive at the nation's capital.

State legislators are often different. They are typically earlier in their political career, many have full-time non-political jobs, and most are not as beaten down by the media and liberal political culture as their federal counterparts.

Even many Democrats are more grounded on the state level. It's true that states like California and Massachusetts are very liberal, but how far-fetched is it to believe the legislatures of West Virginia, New Mexico (Dem controlled) and Kentucky (Dem house, GOP senate) could be persuaded to vote for a convention to propose something like federal term limits?

5. Republicans already control all or part of many of state legislatures
A convention to propose amendments requires 34 state legislatures to sign on. Currently, 27 legislatures are majority Republican in both houses. The GOP control one chamber in five more states. The nation's only non-partisan legislature is in Nebraska, a solid red state.
In other words, right now, without any electoral push, getting at least one legislative body in 33 of the 34 states required is simply a matter of convincing Republicans. This bears repeating. Presently, 97% of the state legislatures needed for a convention are completely or partially controlled by the GOP. Compare that to a 45%-Republican U.S. Senate and a 53%-Republican House.

Given the current make-up of the federal and state legislatures, which goal seems more achievable, the simultaneous elections of a strong conservative speaker (it's been nearly two decades since the short-lived Gingrich takeover), a constitutionalist president (Ronald Reagan and Calvin Coolidge are the only two in the last 100 years), and 60 reliable conservatives in the Senate (which last happened in the 1920s), or to convince a few purple states to call for a convention?

Any pro-constitutionalist strategy must recognize the sense of hopelessness that persists among many conservatives in the wake of the 2012 elections. Besides the disappointment in the results themselves, the post-election performance of GOP has been a disaster. Whatever post-2012 motivation remained to fight for the national Republicans has all but vanished.

To add to conservatives' frustration, repairing the damage through the electoral process seems overwhelming. Tireless grass-roots efforts in 2010 and 2012 have yielded few substantive victories. Swing voters who seem endlessly deceived by phony media narratives and pop-culture irrelevancies combine with a feckless GOP leadership to feed the growing sense of powerlessness.

Given the condition of the country and tenor of the national debate, a new strategy is needed. A state-ordered convention simultaneously transcends federal-level impediments and harnesses the conservatives' current and potential strength in state legislatures around the country.
The amendment convention strategy is undoubtedly unorthodox, but it also appears to be the most practical method whereby America can restore constitutional governance.

http://www.americanthinker.com/2013/08/5_reasons_why_a_constitutional_convention_is_a_better_idea_than_just_electing_more_republicans.html#ixzz2dH2oVyVF

Is Article V in Our Future?

Attacks on the U.S. Constitution are coming from all sides. The New York Times opened its op-ed page to several liberal professors of government: One calls our Constitution "imbecilic," another claims it contains "archaic" and "evil provisions" and a third urges us to "rewrite the Second Amendment."

Out of exasperation with the flouting of the Constitution by Barack Obama and his acolytes, and the way Congress is letting them get by with these violations, several conservative authors and pundits are promoting the calling of a national convention to propose amendments to the Constitution. They believe a series of amendments can put our country on a wiser path.

The authority for such a procedure is Article V of our Constitution, so they are calling their plan of action an Article V convention. However, they are fooling themselves when they suggest that Article V creates a path to bypass Congress with a "convention of states."

The only power the states have under Article V is the opportunity to submit an "application" (petition) humbly beseeching Congress to call a convention. Hundreds of such applications have been submitted over the years, with widely different purposes and wording, many applications were later rescinded and some purport to make the application valid for only a particular amendment such as a federal balanced budget or congressional term limits.

Article V states that Congress "shall" call a convention on the application of two-thirds of state legislatures (34), but how will Congress count valid applications? We don't know, and so far, Congress has ignored them anyway.

If Congress ever decides to act, Article V gives Congress exclusive power to issue the "Call" for a convention to propose "amendments" (note the plural). The Call is the governing document which determines all the basic rules such as where and when a convention will be held, who is eligible to be a delegate (will current office-holders be eligible?), how delegates will be apportioned, how expenses will be paid and who will be the chairman.

Article V also gives Congress the power to determine whether the three-fourths of the states required for ratification of amendments can ratify by the state legislature's action or by state conventions.

The most important question to which there is no answer is how will convention delegates be apportioned? Will each state have one vote (no matter how many delegates it sends), which was the rule in the 1787 Philadelphia convention, or will the convention be apportioned according to population (like Congress or the Electoral College)?

Nothing in Article V gives the states any power to make this fundamental decision. If apportionment is by population, the big states will control the outcome.

Article V doesn't give any power to the states to propose constitutional amendments, or to decide which amendments will be considered by the convention. Article V doesn't give any power to the courts to correct what does or does not happen.

Now imagine Democratic and Republican conventions meeting in the same hall and trying to agree on constitutional changes. Imagine the gridlock in drafting a constitutional plank by caucuses led by Sarah Palin and Al Sharpton.

Everything else about how an Article V Convention would function, including its agenda, is anybody's guess. Advocates of an Article V convention can hope and predict, but they cannot assure us that any of their plans will come true.

If we follow the model of the 1787 Convention, will the deliberations be secret? Are you kidding? Nothing is secret any more. What are the plans to deal with protesters: the gun-control lobby, the gay lobby, the abortion lobby, the green lobby, plus experienced protestors trained by Obama's Organizing for Action, at what would surely be the biggest media event of the year, if not of the century.

There is no proof that the VIPs promoting an Article V convention have any first-hand knowledge of the politics or procedures of a contested national convention. Don't they realize that the convention will set its own agenda and that states will have no say over which amendments are considered?

A recent example of how a convention chairman wielding the gavel can manipulate what happens is the way the 2012 Democratic National Convention chairman ruthlessly called the vote wrong when a delegate tried to add a reference to God in the party platform. The chairman got by with declaring the amendment passed even though we all saw on television that the "Noes" won the vote.

The whole process is a prescription for political chaos, controversy and confrontation. Alas, I don't see any George Washingtons, James Madisons, Ben Franklins or Alexander Hamiltons around today who could do as good a job as the Founding Fathers, and I'm worried about the men who think they can.

http://townhall.com/columnists/phyllisschlafly/2013/08/27/is-article-v-in-our-future-n1673875/page/full