Article V Convention: X Facts and VII Arguments

ConConViewpoint

By Rep. Kelly Townsend (AZ-LD16)

January 12, 2014

The Maricopa County Republican Committee narrowly defeated a resolution that would denounce support of an Article V Convention.  This method of proposing amendments to the Constitution has never been done before, so it is understandable that we are less than scholars on the subject, and vulnerable to the misinformation and fear tactics going around recently that were behind this resolution yesterday.  I would like to encourage us to know as much as possible about the subject before taking a side on this issue.  For this reason, I have put together this fact/argument sheet for your review. PLEASE read this document in its entirety and do some research beyond it on your own.  This is important folks.  The States are rising up and moving forward with this.  The question is, will Arizona be among them?

Article V – Parenthesis mine

(Part A) The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, (Part B) on the application of the legislatures of two thirds of the several states, (34) 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, (38) 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.

Fact # 1 – The Congress and the States both have the same power to propose an amendment to the Constitution.  It is part A and part B of the same goal, amend the Constitution.  So far, only Congress has proposed our Amendments, and the States have yet to get 2/3 to request a convention, so it has never been done before through the Legislatures.

Fact #2 –  Article V does not allow the State Convention to call a ‘Constitutional Convention’ to scrap the entire document and start over as was done in 1787/1789.  It simply allows for the Legislatures to propose amendments.

Fact #3 – Congress is legally compelled to call the convention if at least 34 States pass resolutions within their Legislature, petitioning Congress to do so.

‘on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments,’

The word ‘shall’ is legally binding and cannot be debated.  If 2/3 of the States petition Congress, they must act.

Fact #4 – There are only two actions Congress has with this whole process. 1) They must call a convention upon application of 2/3 of the States, and 2) they decide the method the method by which the amendment will be ratified.

Fact #5 – There are two methods of ratification of a proposed amendment 1) the State Legislatures would pass a resolution to ratify the Amendment or 2) there would be a Ratifying Convention of the States, where delegates would be elected by ballot.

Fact #6 – Of the 27 current Amendments, only one was ratified by a State Ratifying Convention.  The 21st Amendment to repeal the 18th (Prohibition) was ratified through the Ratifying Convention of Arizona on Sept. 5th, 1933.

Fact #7 – The reason Congress decided to go with the convention instead of the Legislative resolution to ratify the 21st Amendment was due to the fact that the Legislators did not want to go on record supporting the repeal of prohibition, facing accusations of supporting alcohol in their upcoming elections.

Fact #8 – The Statute that governed the Ratifying Convention in Arizona can be found in Title 16, Chapter 4, Article 14.  There in 16-705 it states that for a delegate to change their position on whether to ratify or not is merely a misdemeanor:

C. Delegates elected upon a platform or nomination petition statement as favoring or opposing ratification shall vote at the convention in accordance with that platform or nomination petition statement, and upon an intentional failure to do so any such delegate is guilty of a class 2 misdemeanor, his vote shall not be considered, and his office shall be deemed vacant to be filled as provided by this article for filling vacancies.

I have drafted a bill that would make this a class 6 felony in an effort to drive home the consequences of deceiving the people.  To be on the ballot, one must get 1000 signatures on a petition that states you are for or against ratification.  To say you are for it, and then vote against it during the convention, should carry severe consequences of at least a class 6 to strip their future voting rights.

Fact #9 – This is a purely Legislative process, and does not involve the Executive approval (Governor’s signature on the resolution).  The Legislators of the several States will be doing all the work except for Congress calling the Convention and choosing the method of ratification.  It is up to the State Legislatures to choose their delegates and set the rules for what happens to those delegates should they not abide by the rules set in place for them when they go to the convention.  If they violate the rules, they will be sent home and replaced.

Fact #10 – This is not a Constitutional Convention (Con-Con).  This is an Article V Convention of States for the purpose of proposing Amendments to the Constitution.  Those Amendments are binding according to Article V and shall be considered valid to all intents and purposes.

Argument #1

It has been argued that it is futile to go through with this process because Congress and the Executive do not abide by the Constitution now, so we should not expect them to recognize and abide by any new amendment(s).  It is my opinion that to do nothing is not an option.  Our Founders could foresee an overreaching Federal government, and wisely put this in Article V to help protect us from that.  If we do not utilize it, we are as guilty of ignoring the Constitution as the offenders.

Argument #2 – It is being incorrectly taught that there is too much unknown to move forward with an Article V Convention of States.  There is fear that we don’t know who the delegates will be and that they could scrap the document and start over with an entirely new Constitution, as in 1787/1789.  This is wholly untrue and not the purpose of Article V.  There is only precedence on who decides delegates for a convention of states when we ratified the 21st Amendment via a State ratification convention in 1933. In that situation, the States decided who delegates would be. Nothing in Article V gives Congress authority to dictate how delegates will be selected. Precedence is that it is up to the States. Even when they held the Con-Con, the States determined the delegates.

The Congress has the exact same power as the Convention of States, and we don’t see them proposing such nonsense.  The States have no more power to do such a thing than Congress, and you will see I added Part A and Part B of the same process within the text of Article V to illustrate that it is the same power given to both bodies.  Only one body has utilized that power.  This Red Herring argument to induce fear into our minds is a foreign concept to the American Spirit.  The last time I checked, I lived in the land of the free and the home of the brave, not the home of the afraid.  The antidote to fear is knowledge.  We must educate ourselves on this process and have the boldness of the founders to rescue our sovereign States.

Argument #3 – We could end up with a bad Amendment.  It is true that bad amendments have found their way into the Constitution.  And it is also true that the 1933 Congress had the guts to repeal one of them.  We have that opportunity now, to repeal at least the 17th Amendment, and we also have the opportunity to add further safeguards.  Doing nothing perpetuates the status quo (which has to go).  I cannot put my head on my pillow at night knowing I didn’t try.  Conversely, I do not want to be on the side of history that passed the baton to the next generation without giving my every last ounce of courage.

Argument #4 – It has been said that this is a veiled effort of the left to convince us to hold the Convention, only for them to take it over and scrap the Constitution.  If you look at the efforts of those against this, it is the extreme left who are crying foul the loudest.  Click here and here for examples.  Those who support it include Mark Levine, Goldwater Institute,

Argument #5 – There are other ways to take care of this problem.  This is true, there are other ways.  However, do we have time?  How long will it take to implement them and what will be the state of our country by that time?  There is no one way to fix this out of control Federal government.  However, the Constitutional way to do so is through the Article V amendment process, which cannot be challenged if done according to the Constitution.  If 2/3 of the States petition Congress, they must call a convention.  If 3/4 of the States ratify, then it must be observed.  Any other efforts may be open to legal challenges, further extending the time that damage can be done to our country.

Argument #6 – The same conservative folks sounding the alarm against an Article V convention are also advocating for a repeal of the 17th Amendment.  There’s only two ways to do that, folks.  An amendment proposed by the Congress, or an Amendment proposed by the States (Article V Convention of States).  Let’s do it!

Argument #7 – Supreme Court must determine outcome.  There is no room for interpretation of Article V.  It is clear language, and to have a rogue Supreme Court do anything other than recognize the binding nature of this process illuminates the problem we have within the judiciary.  One of the amendments being tossed around for proposal is to allow 3/4 of the States to overturn a Supreme Court ruling.  That can only be done by (you guessed it) an Article V Convention of States to propose that amendment.

_________________________________________

Previous CJ article on this subject: https://citizensjournal.us/pros-and-cons-of-constitutional-conventions/

0 0 votes
Article Rating
Subscribe
Notify of
guest
10 Comments
Newest
Oldest Most Voted
Inline Feedbacks
View all comments
Greg Muller

The Joining of Questionable Characters in The Convention of States

Read more at http://freedomoutpost.com/2014/02/joining-questionable-characters-convention-states/#z1hvHhevEVXmM6eR.9

Greg Muller

By Phyllis Schlafly August 27, 2013 12:25 pm
Print Tell a Friend
Text Size: A A A
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.

Phyllis Schlafly is a lawyer, conservative political analyst and author of 20 books. She is the co-author, with George Neumayr, of the New York Times Best-Seller titled “No Higher Power: Obama’s War on Religious Freedom.” She can be contacted by e-mail at [email protected]. To find out more about Phyllis Schlafly and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Website at http://www.creators.com.

COPYRIGHT 2013 CREATORS.COM

Greg Muller

Con-Con: Next Quick Fix
Let’s face it: everyone appreciates quick solutions to problems, especially problems that seem to be out-of-control. So when the federal government goes off the rails and situates itself ahead of the sovereign states that created it, should we be petitioning it to propose amendments to a document it no longer follows?

Yet that’s what many conservative groups across the country are proposing through an Article V Convention. Rather than focus on the problem (politicians not following their oath and an uninformed electorate), they would much rather create additional rules for the federal government to ignore. Isn’t that what additional amendments would be: ignored?

Plus, the Article V process has the ability to open Pandora’s box with a plethora of problems, including a runaway convention, an altered Bill of Rights, not to mention a scrapped Constitution. A number of radical leftists are on-board to convene a convention, too.

While a quick fix is appreciated by everyone, one does not exist. Unfortunately, this makes for great fund-raising campaigns that you may have seen by groups on both sides of the political aisle. If a convention does convene, in the end, the results will range all the way from increasing disappointment of concerned Americans who may stop being active to losing the Constitution.

Since the states have created the federal government and granted powers to it, it’s time these states stood up to place the federal government on notice as acting outside of these limitations. And if the states are serious about drawing a hard line, they will need to wean themselves from any government incentives that cause the states to rely on the federal government. These entangling alliances do nothing but cause dependency issues for the states and the people.

The John Birch Society has stood up against calling for Article V conventions for decades, and it won’t be deterred in this position. Nor will it be deterred from calling for strong states and limited federal government, even as detractors use leftist tactics to demean JBS.

We ask you today to Choose Freedom — Stop a Con-Con. Our solution of an educated electorate holding elected officials accountable and the elected officials acting within their constitutional limitations is not an easy one, nor is it a quick fix. But it’s what the founders envisioned for America and it did work for generations. We need your help to once again bring this back for us and for future generations.

Greg Muller

Constitutional Convention Can Not Be Controlled

October 23rd, 2011 by Tom DeWeese

http://americanpolicy.org/2011/10/23/constitutional-convention-can-not-be-controlled/

Bill Haff

“It has been said that this is a veiled effort of the left to convince us to hold the Convention, only for them to take it over and scrap the Constitution.”

Ironically, I am a member of the left, working on an amendment to end corporate personhood (with the help of some on the right), and I can’t convince some colleagues to consider an Article V Convention, because they’re afraid the RIGHT will hijack the process and scrap the Constitution: outlawing labor rights, making Christianity the state religion, making “witchcraft” a capital crime, etc. etc.

I think political elites in both parties have persuaded Americans to distrust each other, to prevent us from taking action that challenges the status quo (demonizing the other side helps fundraising, too). The grassroots on the left and right should talk to each other more; trust and action may result.

The Ghost of Thomas Jefferson

This is what awaits us at a Con-Con. They are locked and loaded, waiting for us to walk into their trap. http://www.bibliotecapleyades.net/sociopolitica/master_file/newstatesconstitution.htm

The Ghost of Thomas Jefferson