When the issue of an Article 5 convention of States, to amend the Constitution, came up in the 78th session of the Nevada legislature, I offered the following as testimony on one bill and a comment on another.
2015 March 24, RE: AJR7
With respect to a constitutional convention (“con-con”) called by the States under the terms of Article 5 of the US Constitution, I am offering the following comments in opposition, and i am offering an alternative that is more practical in today’s political climate.
On the legal side,
There is nothing in Article 5 or anywhere else in the US Constitution that allows or disallows the organizers of a constitutional convention to set the terms of the convention. There is nothing there to say what kind of amendments can be proposed, or that the amendments to be proposed must be limited to the organizers’ initial list. There is nothing there to say which parts of the Constitution are sacred and which are fair game to be amended by a constitutional convention. Therefore the convention can do anything, including an amendment that says everything now in the Constitution is null and void and therefore propose an entirely new one.
Article 5 says only that the States can petition Congress to call a constitutional convention. That’s it; the States have no more say. It is then up to Congress to act on that petition. Again, there is nothing in Article 5 to specify exactly what Congress must do. What is clear is that the States will NOT control the convention; Congress will.
With respect to 3/4 of the States having to approve anything proposed by a constitutional convention, the legal issues are: Does approval require a direct vote of the people or just their legislatures? Will they have to approve the package as a whole, or each individual piece in it? The Constitution seems to be clear that each amendment has to be approved separately, but I can see the conventioneers either insisting that their work be considered as a package, or proposing one huge omnibus amendment. There is nothing in the Constitution that says an amendment has to address a single topic.
On the practical side,
You can just imagine what kind of convention rules this or any future Congress would lay down, given recent events that have clearly demonstrated that even the “establishment” Republicans stand on the wrong side of many issues, and even the Supreme Court has been issuing highly questionable ruling lately (Citizens United, Kelo, 0bamacare, etc.). Clearly the new ruling majority is the unholy alliance between Democrats and RINOs.
To state it succinctly, the entire Bill of Rights, which already has been steadily eroded in the last 60-80 years but especially since 2001, is under immediate threat from this new ruling majority and any “reformers” they would appoint to any constitutional convention. Goodbye 1st, 2nd, 4th, 5th, 9th and 10th amendments, to say the least.
Precisely because the rules set down by our Founders are so open-ended, the very first thing that would happen is a flood of law suits over anything that the convention would adopt (1) as convention rules, and (2) as amendments, and the disputes would be resolved, god knows when, by the Supreme Court as presently constituted, thanks to the disastrous appointments made by 0bama.
Yes, there is the practical matter of 3/4 of the States having to approve any proposed amendments. These are the same States that have approved the Income Tax, Prohibition and other gems such as giving the vote to 18 year olds. What assurance do we have that sanity would prevail now just because we wish it so? We live in an age of snarky comedy shows being the exclusive source of news for an entire generation; the “mainstream” news and entertainment media serving as the propaganda arm of the government; the schools teaching disdain and hatred for our founding values, traditions and history; and the low information voters returning the same creepy bunch to office, term after term after term.
If the States consider each amendment separately, we will end up no better than what we have now, a logically inconsistent incoherent mess — after all, the very purpose of amendments is to change the Constitution without regard to the internal logical consistency of the resulting document. If they consider all proposed amendments as one package, then most likely the States will reject it because it is always too easy to find something in a package that you just hate (and then the entire exercise was a huge waste of time).
None of that gives me hope that anything good would actually come from a constitutional convention. It would certainly generate a lot of heat, but no light. I say that as someone who has chaired a platform committee, ran a candidate’s campaign office, was a party convention delegate and a state committeeman from my county, and therefore watched from the inside the bickering, politicking and other petty clashes of fragile egos.
In my opinion, what would work better than a constitutional convention is a program of more practical alternatives, such as
1. Repealing Common Core and the new standards for Advanced Placement US History.
2. Educating the public about our founding: the Constitution, the federalist and anti-federalist papers, etc.
3. Educating the public about the workings of the free market and a free society.
4. Reinvigorating the TEA Party and making sure that in the primaries the only candidates who win are people of integrity who understand our values and will keep their campaign promises.
5. Proposing separate amendments to correct a series of wrong-headed Supreme Court decisions and bills passed by Congress, and other grave issues such as uncontrolled spending, runaway national debt, war powers, the welfare state and creeping (galloping) socialism, national security and erosion of the 4th Amendment, immigration, voter ID, etc.
None of this is fear-mongering, as proponents of “con-con” claim for lack of a better argument. It’s just common sense.
2015 May 5, RE: SB274
SB274 is based on the mistaken assumption that States have the authority under the Constitution to set the terms of a constitutional convention. Of course if you read the Constitution itself (Article 5), you will see that the Constitution says no such thing. States can only PETITION Congress. That’s it.
Contrary to the assertion, stated in this SB274 section 2, that
2. The Founders of our Nation understood that when the state legislatures make applications to Congress to call an Article V convention, the state legislatures are empowered through their applications to limit the subjects and amendments which may be considered by the delegates to the Article V convention.
the fact is that they did NOT put that “understanding” anywhere in the Constitution. Quite the opposite;
In Article 1, section 8, paragraph 18 the Constitution says Congress has the power to write the necessary enabling legislation for the exercise of all the express and implied powers granted to it. As our friend JH’s patient research has uncovered, Congress has already tried:
U.S. Senators Sam Ervin and Orrin Hatch recognized this when they introduced legislation into the U.S. Senate which determined how delegates would be selected and that representation would be proportional (based on population).
Note the key part: “Proportional.” NOT “equal.” Apparently Hatch and Ervin didn’t care that the original set-up of the Senate was and still is equal representation of each State regardless of population.
Under terms proposed by Hatch and Ervin, small States such as Nevada should be the LAST to support a con-con. Our voices will be overwhelmed by the socialist cacophony from our neighbor to the west, as well as from other big state loudmouths in the East and Midwest. We may have the majority of States with Republican governors and legislatures, but we do not have the majority of people living in those States — and this 78th session is daily proof how little it means to have a Republican majority.
The only way SB274 would make sense is if every State that supports a call for a con-con would also pass a limitation bill AND if their con-con delegates would stay faithful to their charter — and clearly none of that is true, even though passing a limitation bill makes passage of the call for a con-con more likely.
The fact is, a con-con populated with delegations apportioned by population size will still leave the big States with the biggest voices, and those voices will not support the kind of conservative Amendments that the proponents of a con-con cite as the reason to call a con-con.
Regardless of the politics, the political maneuverings and the attempts to finesse the language, the fact remains that the Constitution is clear on this issue, nothing allows the States to set the terms of a con-con, and Congress has already dabbled with proposals of their own, which are the only ones with any possible constitutional authority.
Therefore I urge you to vote no on SB274.
You’ve already voted no on AJR7; let’s not have any misconceived excuses to bring it back.