Constitutional Convention--Pros & Cons 4-6-15

Preface to the discussion:  Common sense Campaign's mission is to educate citizens and allow them to make up their own minds.  Two of our CSC members have taken an opportunity to provide both pro and con arguments for this issue that is slowly coming to the forefront of American Politics. The oldest letters are at the beginning of this page and they continue as the reader scrolls down the page.

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first letter to be inserted ASAP

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From: Bert Blackmon

Sent: Sunday, April 5, 2015 10:24 AM

To: Common Sense Campaign

Subject: Re: Why the Article V Convention Must Be Opposed

Why we should oppose a Convention of the States.  I will endeavor to answer some of the questions Mr. Stang [Stone] raises.  The first, however, and most important question (and the one for which the opponents never have an answer) is; What else is left other than a complete abandonment of the Constitution or open armed rebellion?

  The Articles of Confederation had proven to  be a totally unworkable form of government.  It was so bad that their was a real possibility of some of the States being taken in payment of debts.  The requirement that all 13 States had to approve any important legislation had the entire Government at a complete standstill and the inability to require payment of taxes kept it perpetually teetering on bankruptcy. 

  The Congress of the Confederacy authorized a "Convention of the States" to find ways to improve the government.  For political reasons they could not say it was to create a new government but there was little doubt in the State Legislatures that the end result would be something altogether different.  As the Legislatures chose their delegates to the Convention, they gave them their instructions as to what to support and not support.  The delegates were strictly under the control of their respective State Legislatures and could be recalled as needed.  Most of us were taught that the delegates suddenly decided to throw out the Articles and write a new Government after they got to Philadelphia but the truth is that every one of them knew exactly what was going to happen.  They just didn't know what form the new government would take.

  In the latter days of the Convention several delegates became worried about the exact situation we have today-a runaway Congress.  They worried that such a Congress would not reform itself or allow any amendment that would restrict its power.  George Mason of Virginia suggested a second method of Amending that would take not only Congress out of the process but all Courts, the Executive branch and all State Governors.  The plan,as stated in Article 5, gives only one perk to Congress.  It States that Congress MUST call the Convention, not that it may call or can set limits on but only that it MUST call the Convention.  After that Congress can only sit on the sidelines and await the results.  Before I continue let me ask again; What is your solution?

In the above we have answered some of the points you raised.   Here I will endeavor to address a few more of your concerns

(1) Who will control it?  The Legislatures of the states through delegates they select.  They and only they wIll have to power to direct, discipline and instruct those delegates.  How each Legislature does this is it's own business and cannot be restricted by any other political entity.

(2) What is the Federal Governments role in this?  After the Congress calls for the Convention-none at all.

(3) How many times have I been frustrated with the failure of congressional leadership in both houses to uphold their oaths, or to put our interests first?  Every day; and that is why I have absolutely no faith in them to suddenly do anything to reverse the course they have set.  Once again sir, What is Your solution?

(Note) In Your 3rd and 4th paragraphs you seem to confuse the Congress with the Texas Legislature.  Once again, after the Convention is called, the Congress has no role left at all and the Texas Legislature will retain complete control over the Texas delegates.  I trust the Alabama State Legislature little more than the National Congress but at least I am in contact with my legislators.  I know where they live, have their phone numbers and email  and can quickly voice my likes and dislikes and be sure they receive them.  This is less likely with those swimming in that pond scum called Congress.

4) Will the delegates faithfully execute their charter? Maybe or maybe not.  Those 1797 delegates executed their instructions just as they were given.  This is apparent as they were not recalled.  While the proceedings were confidential to the public, the delegates were in constant communication with their legislative masters and in constant mind that their work had to be approved by the States to go into effect.

5) Are there limits on the scope of discussion at the convention? It seems most likely that the Convention itself has the power to limit the topics but as to a "runaway", that is most unlikely.  For a topic too be raised it would have to go through normal parliamentary procedure just to get to the discussion phase.  It would have to pass by a two thirds vote of the Convention and then face a three fourths vote of the State Legislatures.  I much more fear the current uncontrollable Congressional Runaway. 

6) You seem to bemoan the fact that there is no Congressional oversight of such a Convention.  I see this an extreme plus considering the wonderful job they are currently doing.  I would really love to hear your solution!

7) I have no particular angst with your closing except I would go even farther with it.  That being said, I think we will agree that Mr. Madison said it better than either of us ever could.

Let me leave you with this:  If we do not try this will we chose submission or rebellion or do you have a viable third choice?

-Bert Blackmon, Bay Minette Alabama

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.

James Madison <http://foundersquotes.com/quote-author/james-madison/>

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THE CON-CON CONTROVERSY - 31 Jan. 2014

You’ve all probably seen and heard a bit about the CON-CON debate that’s quietly taking place all over the nation. If you haven’t, then please pay heed. You have some catching up to do.

At issue is the thought that our country needs to apply term limits to our Congress. There may be other issues as well, such as an amendment to require Congressmen and Senators to live according to the laws they pass. Issues seem to come and go in the business of politics, so it’s hard to keep a running tally of them all. The remedy that seems to have force behind it today is to amend the Constitution via a state-requested Constitutional Convention (CON-CON).

The guidance everyone goes by when discussing CON-CON is Article V of the U.S. Constitution, which 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 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; 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.

That’s all it says. It’s not much. But, even so, it needs understanding to deal with the issues surrounding whether or not to jump on the CON-CON bandwagon.

The first clause of Article V describes the usual way amendments are proposed. All existing amendments have been proposed by two thirds of both houses. The second clause of the first sentence gives America a second way to proceed, a way that’s never been tried. It says that two-thirds of the states can apply to the Congress to call a Constitutional Convention for the purpose of proposing amendments. All amendments proposed by such a Constitutional Convention would then have to be ratified by the legislatures or state-level Constitutional Conventions.

That’s really all it says.

Mark Levin has been pushing for use of Article V to convene a Constitutional Convention to get the conservative’s desires before the People. That sounds good, doesn’t it? We think we need term limits. We think we need an amendment that forces the members of Congress to comply with the laws they pass, don’t we? It all sounds good, doesn’t it? After all, we just need to get 34 state legislatures to petition Congress, have our convention, get our amendment proposals out to every state, then push until we get 38 states to sign on. What’s so hard about that?

Levin is working to get state legislatures to propose identical or very similar language in their petition legislation. The notion is that the wording of the petitions will require Congress to heed the will of the state legislatures. So, the wording of the state petitions will be specific that they want a CON-CON called to deliberate on the proposals WE say we want. So, what could go wrong?

Note that Article V doesn’t say that the state legislatures can determine the agenda of a CON-CON. It only says they can petition Congress to call one.

Upon petition of 34 states, according to Article V, the Congress “shall” call a CON-CON, but there’s nothing that prevents Congress from imposing rules. There’s nothing that says when Congress would have to call a CON-CON. There’s nothing that says Congress can’t decide how the delegate selection and seating process will work. There’s nothing that says Congress can’t mandate that THEY would comprise the delegates to the CON-CON. There’s nothing that says Congress can’t require the states to hold open delegate elections. There’s nothing that says how the voting within a convened CON-CON will be done, whether decisions will be made by simple majority or by some kind of super-majority. In fact, there’s nothing that prevents Congress from making any rule they want.

If the preceding paragraph doesn’t concern you, think of this. Our number one initiative seems to be to push for a term limits amendment. Congress will make the rules for how the CON-CON will be run. After all, they will convene it, so they can make the rules. What are the chances that they won’t figure out how to rig a CON-CON to ensure a term limit amendment proposal is never brought up, or can’t possibly pass. Where’s Congress’ self-interest? How many people do you think there are in Congress who are interested in limiting their ability to ride on that golden gravy train? Give it some honest thought, and then if you think we’ll see term limits, you’re far more optimistic than I’ll ever be.

There’s a lot of chatter in the Internet that warns of a runaway convention. If I understand my history, the original Constitutional Convention (called the Federal Convention at the time) was called for one purpose, but ended up doing something else. Originally it was called to consider amendments to the Articles of Confederation, which was the original document that our government worked under. Once in session, though, the delegates decided the Articles of Confederation had too many structural and philosophic defects, so they decided to just scrap it and start over. Once convened, the notion is that the Convention can do whatever it wants, and regardless of the original intent of its formation, can re-organize and re-charter itself. Personally, I believe this to be a fiction. I don’t believe the U.S. Congress will allow any CON-CON to become a runaway. They’ll control it by way of the charter they impose on it. So, I’m not as concerned about a runaway convention as I am about the charter.

The charter Congress would impose on any CON-CON will dictate all. It will set the rules for who attends and how those people are selected. It will establish the agenda of items to consider, and set the rules for how the agenda is considered. It will specify how the CON-CON is to report out.

Article V implies the CON-CON will create the amendment proposals and those proposals will then be subject to state legislative action, with no interference from Congress. Would it happen that way? Perhaps. And, perhaps not.

Now, just suppose the charter for a CON-CON is, for some strange reason, loose enough to allow the convention to determine its own agenda. If that is the case, everything would depend on the delegates; how they are chosen and how they are controlled by their state governments. Call me cynical, if you must, but my trust factor for politicians is exceedingly low. Just because my legislator tells me he and I are on the same page doesn’t mean it’s true and doesn’t mean he isn’t telling everyone else the same thing. It doesn’t mean that our delegates are actually chosen because they want the same thing I do and that many of us do. There are an infinite number of things that may result in a delegate voting in a way the public in his/her state doesn’t want. Once the doors of the convention are closed, those delegates are absolutely beyond the control of the citizens who sent them. The delegates are on their own, to wheel and deal, and determine what they want as an outcome.

Okay, let’s just get to the bottom line on all this. From my perspective the risk of a CON-CON is too great. There’s too little definition in how a convention would be formed and controlled. There’s too little there to convince me that the convention can’t run away and do something entirely different from the intent of the People.

What’s my nightmare scenario? Instead of seeing an amendment proposal sent to the states to create a new amendment to require term limits or to bind our Congress to the laws they pass, we see a different amendment proposal. My nightmare would be to see an amendment proposed that would repeal the 22^nd Amendment.

By all means, the Promise Keepers article should be broadcast to everyone, everywhere, with no restrictions.  This is something that affects all in our land, or at least, might.  And, there's still a lot of controversy regarding the right thing to do.  Besides, it says virtually everything my own article does.

Mark Levin says the concern of a runaway convention is mitigated by the requirement for 38 states to ratify whatever the outcome of any Con-Con might be.  That sounds good, except for one thing - there's no time limit attached to these things.  The current call for an Article V convention began back in the '70s and the number of states is just now approaching the critical number of 33.  The Constitution sets no timelines for either the calling of a convention, nor the adoption of any results.   As an example, the 22nd Amendment was proposed in 1789 and finally adopted only in 1992.  That's 203 years in the ratification stew-pot!  Since 1917, Congress has usually imposed ratification deadlines, but not always.  All it takes is a clause in the text of the proposed amendment itself, such as,  "This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress."  I might expect a term-limit proposal to get a pretty short time-frame in which to be ratified.  In fact, I would suspect that any proposed amendment would get a very short time-frame allowed if Congress has it's say in the matter. 

My thought is that Congress will have its say, which could make the whole thing an exercise in futility.   Well, maybe not.  Think of it this way:  if a Con-Con runaway happens and it proposes a bad amendment that increases the power or influence of Congress, it wouldn't serve the interests of Congress to force a rapid response from the states.  In such a case, there might be no time limits, which means we could see a truly bad amendment created that might take many years to pass.   But, as more time passes, the laws of probability begin to manifest and almost any amendment has an increasing chance of acceptance.

Another wrinkle in this is the potential that Congress can preempt the process.  That's been tried before, but failed.  Congress has attempted at least twice to pass a bill that would define the entire process of a Con-Con.  Many Constitutional scholar believe such a law would exceed Congressional authority and would be rejected by the Supreme Court.  But, just think, if a Con-Con looked like a certain reality Congress could react by passing legislation that could stall the question of process in the courts for many years to come.

Maybe it was intended to be this hard.

My bottom line:    The Con-Con . . . . DON'T DO IT!  At best, it may be a waste of our time and resources.  At worst, it can result in amendments we DON'T want.

Steve

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