The name of this bog is Just the facts, ma’am, so here are some facts.
1. US Constitution, Article 5.
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.
2. As a legal matter, there is NO such thing as a convention convened by the States. Article 5 is clear enough; CONGRESS shall convene the convention if enough states petition Congress for it.
3. As a practical matter, what makes anyone think that 34 state legislatures would do so? There are no 34 states with Republican majorities in their legislatures, and even if there were, not all of them would be favorable to the idea. Constitutional conservatives are a minority in the Republican party, and totally absent among the Democrats. Third parties are too small to matter.
Only someone who has not directly observed the operations of a state legislature would suggest that they’d have the inclination or the time to consider federal matters. They don’t even have time to pay attention to local matters. For example, in the last session of the Nevada legislature, they had on their agenda over 1200 bills to pass or reject in 120 days. Can you really expect that a legislature can hold hearings and votes — in committees and floor sessions in both houses — on ten bills per day, and still debate and decide what to do about Congress?
4. In any case, were such a convention convened, its participants would be nominated by — who else — the establishment, whatever that is in each state. That means, participants would be just as statist as the present establishment. Surely you don’t expect prominent left wing academics and jurists to be left out, do you?
5. Even if a convention would be called to consider only specific amendments such as Mark Levin’s (were that restriction even legal…), nothing would stop a convention from amending the Constitution to death, by offering additional amendments to enshrine the worst statist laws, executive orders, regulations and court decisions in the Constitution itself, and to strip out the remaining few shreds of constitutional protections of individual rights, such as the 2nd, 4th, 5th, 9th and 10th Amendments.
6. That is why I offered an alternative agenda, consisting of items the Congress CAN do now, fully within its powers without the need for additional amendments to the Constitution and a constitutional convention to do it.
(a) Legally, Congress must pass a budget every year (that is why they engage in the charade of “continuing resolutions), therefore every year they CAN fund or defund any department, agency and program if they have the will to do so.
(b) Legally, Congress CAN refuse now to pass continuing resolutions. There is no constitutional requirement to do pass anything like that.
(c) Legally, Congress CAN replace obamacare now with anything else they wish. I suggested health care savings accounts, which sets up the patient and his doctor as the primary or even the only participants in the relationship. There would be dramatic reductions in cost if the present and growing overhead were simply eliminated; government or private company bureaucrats are pushing paper, not delivering health care.
(d) Legally, Congress CAN repeal now the law they created to impose the income tax. The 16th Amendment did not impose it, it only enabled Congress to do so.
(e) Legally, Congress CAN pass HR 25 now in its present or in a modified form to repeal the income tax and institute a Fair Tax.
(f) Legally, Congress CAN bring the operation of a government bureaucracy to a halt now. At least this was one objection to the hearings conducted by Darryl Issa earlier this year. What a concept; that Congress would actually engage in oversight….
(g) Legally, individual members of Congress CAN sue the executive branch at any time, and as members of Congress, unlike ordinary citizens, they can do so directly in the Supreme Court.
7. The problem is, again, whether even Republicans have the will and the courage to do anything. But all this means is that the difference between my proposals and Mark Levin’s is the matter of practicality. I humbly suggest that my set of proposals is no less practical than Mark Levin’s; in fact mine are slightly MORE practical because the people can still lobby their congressional representatives directly on specific matters before CONGRESS, rather than convince STATE representatives to second-guess Congress and override federal laws. Your state representatives will tell you to your face that their plate is full and they are NOT concerned, able or inclined to do anything about FEDERAL issues. They seem to understand federalism better than those who see every issue as a federal issue.
8. Mark Levin has produced a book that is valuable not so much because of the amendments he proposes, but because in the course of explaining those amendments he has produced a practical study guide to the founding documents of this Republic.
Unfortunately, in this book he has failed to address some other important issues:
(a) The abuse of the 4th Amendment in the name of crime, terrorism and national security.
There needs to be a forceful statement that no American shall ever be denied his civil rights for any reason whatsoever.
(b) The abuse of the “due process” clause in the 14th Amendment, whereby the government can do practically anything as long as there is a procedure in place.
There needs to be a forceful statement that no legal or governmental “process” is ever used to circumvent the protections of our rights under the Constitution.
(c) The abuse of “omnibus” bills, whereby Congress loads up a bill with matters totally unrelated to the stated purpose of the bill.
There needs to be a forceful statement that all bills will address only one topic per bill.
(d) The abuse of all bills by loading them up with “pork” totally outside of the budgetary process.
There needs to be a forceful statement that all appropriations are made only in a budget bill, not in other, unrelated bills.
(e) The abuse of the “treaties” clause whereby UN programs are used to override American law and the US Constitution. For example, UN Agenda 21, the law of the seas, the law on small arms, …
There needs to be a forceful statement that the supreme law of the land is the Constitution, and all others — treaties, court decisions, state and local laws — are subordinate and subservient to it.
(f) The abuse of the Civil War amendments, whereby citizenship granted to former slaves is now used to justify amnesty and “path to citizenship” to illegal immigrants, “dreamers” and “anchor babies.”
There needs to be a forceful statement that only legally admitted immigrants, with the demonstrated intention to become US citizens, shall be put on a “path to citizenship,” and that only to US citizens and legally admitted immigrant on a path to citizenship, not foreigners and not illegal immigrants, are entitled to the protections of our Constitution and our laws.
(g) The abuse and practically total elimination of the concept and protections of privacy, as a result of recording and data-mining the activities of ordinary people by government agencies and private businesses, and the free sharing of that data among third parties in the name of national security, law enforcement, or just plain marketing.
There needs to be a forceful statement that there is an inviolable expectation of privacy in all dealings between a person and all other persons or entities, whether in public or in private; and that all personal data is owned by the person to whom the data is pertinent, whether that data is physically held by that person or another party, such as a government agency or a private enterprise; and that no data shall be shared by any third parties for any reason without the express approval of that person.
(h) The abuse of the war powers, by which a President unilaterally commits the nation to a war or “police action” without a declaration of war by Congress.
There needs to be a forceful statement that the President has no authority to order the armed forces of the United States into battle and engage in acts of war without a formal declaration of war by Congress. The only exception is the right of immediate self defense when a unit of the armed forces of the United States or the US itself is attacked, but any further action can be undertaken only as a result of a formal declaration of war by Congress.
(i) The abuse of the Court’s discretionary powers to hear cases and to twist and reshape the Constitution according to their own whims.
There needs to be a forceful statement that the Court is limited to reviewing the constitutionality of laws passed by Congress or a state legislature; that, contrary to Marbury vs. Madison and then-President Jefferson’s acquiescence to it, the Court does NOT have the exclusive right and responsibility to decide on the constitutionality of laws passed by Congress or a state legislature; that the decision on the constitutionality of laws passed by Congress or a state legislature is the responsibility of all participants; and finally, as practically and logically there has to be a final arbiter of civil disputes between plaintiffs, defendants and a ruling by the Court, that such disputes shall be resolved by a jury of ordinary citizens.
I am sure there is more. We are trying to clean up two hundred year’s worth of sliding into the trash heap of a dictatorial federal bureaucracy and presidency.