This discussion concerns the call for a constitutional convention based on Article V of the U.S. Constitution. Although we feel that to call for an Article V convention would be a mistake, we do recognize that there are strong arguments on both sides. It is therefore important to keep our comments civil as we deal with those who oppose us.
CONSTITUTIONAL CONVENTION
Pitfalls
Article V provides for the revision/amendments to the U.S. Constitution. It is the only method provided in the Constitution to revise the Constitution. There have been 27 Amendments to the Constitution, the last one ratified on July 1, 1971. All have followed the program where Congress makes the proposed amendment. For many years the Federal Government has operated outside the Constitution so much so that we are just accustomed to it. But, our position is that if the government has not followed the present Constitution it will not follow any revisions or amendments either.
Article V Text
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.
Discussion of the Process
Since there are 50 states, at least 33.34 (or 34) states would need to propose amendments before Congress would be required to call for a Constitutional Convention. Several states have rescinded their call for a Constitutional Convention, though some legal scholars believe those rescissions are not valid. It appears that there are presently 28 states requesting a Constitutional Convention.
The Congressional Research Service has written a rather lengthy article on the issue of the states calling a Constitutional Convention, or Convention of the States. If you are really interested you ought to read the entire article which is found at the following link:
Congressional Research Service March 29, 2016
https://fas.org/sgp/crs/misc/R42589.pdf
Some considerations.
We need to consider that at 230 years (1787 to 2017) the U.S. Constitution has been in effect longer than any other national constitution in history. Because this Document has made us the nation that we are it means that it is almost sacred, and we need to be very, very careful in making any changes.
A first consideration is this: If the government does not follow the existing Constitution, what makes us think they will follow any additional amendments? It would seem unlikely. In fact it is reasonable to assume that if they have managed to circumvent the good provisions of the Original Constitution, they will find a way to circumvent any revisions. The solution does not reside in revising or amending the existing Constitution; there is nothing wrong with it. The solution is to make it clear that if our representatives and senators do not follow the Constitution we will insure that they do not get re-elected. Then we need to find others who will definitely follow the existing Constitution to replace them.
Another consideration is that the states could lose control and the convention might make changes that would destroy our present Constitution. Although we are told that our state could just jerk home our delegates if they got out of line, this might not be possible and the convention, itself, could change the rules so they could consider anything they wanted to consider.
CONVENTION OF STATES: HISTORIC SIMULATION – September 21-23, 2016
Delegates from each state attended this convention and treated it as though it was a real constitutional convention. The following is the result of that convention:
‘…it is the conviction of this body that the states must deliberate and adopt appropriate proposals for a balanced budget amendment and an amendment to provide the states a means to serve as a check on judicial overreach by the federal judiciary of the United States.
“Fiscal Restraints Proposal 1:
“SECTION 1. The public debt shall not be increased except upon a recorded vote of two-thirds of each house of Congress, and only for a period not to exceed one year.”
At the moment the Federal debt is nearly 20 trillion. That is a lot of money, and it is increasing by a trillion dollars each year. There is a strong need for balancing the budget. However, if we stopped supporting all those activities that are unconstitutional we would go a long way toward balancing the budget. Since about 40% of the present budget is borrowed we will have to make strong cuts to balance the budget.
Secondly, no matter what is in the Amendment to balance the budget, Congress will always find a way to get around it. Governments through long history have a practice of spending on non essentials, leaving the essentials for last. Then, when all the money is gone they will just vote more money to cover the cost of “essential services”. If the increase is only approved for one year they can just renew it each year forever.
“SECTION 2. No state or any subdivision thereof shall be compelled or coerced by Congress or the President to appropriate money.”
Not sure what is intended by this as I am not aware of any government program where states are “coerced to appropriate money,” though the government does have the habit of starting a program and paying for it for the first few years and the states must fund it after that.
“SECTION 3. The provisions of the first section of this amendment shall take effect 3 years after ratification.”
This was approved by a vote of 45 in support, 3 opposed, 2 abstained. Idaho voted in favor of the proposal.
“Federal Legislative & Executive Jurisdiction Proposal 1: (sic)
“SECTION 1. The power of Congress to regulate commerce among the several states shall be limited to the regulation of the sale, shipment, transportation, or other movement of goods, articles or persons. Congress may not regulate activity solely because it affects commerce among the several states.”
This would seem to be a violation of the Commerce Clause of the Constitution.
“SECTON 2. The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effect outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”
Article I, Section 8 says Congress shall have Power to regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes;
There is nothing in this about regulating commerce within the states. Writing this is just redundant.
“SECTION 3. The Legislatures of the States shall have standing to file any claim alleging violation of this article. Nothing in this article shall be construed to limit standing that may otherwise exist for a person.
This would seem to be covered by existing law.
“SECTION 4 This article shall become effective five years from the date of its ratification.”
44 Support, 6 Opposed; 0 Abstain – Idaho voted in favor.
“Federal Term Limits & Judicial Jurisdiction Proposal 1: (sic)
“No person shall be elected to more than six full terms in the House of Representatives. No person shall be elected to more than two full terms in the Senate. These limits shall include the time served prior to the enactment of this Article.”
35 Support, 12 Opposed, 3 Absent/Abstain. Idaho voted for this.
This is known as the term limits proposal. There has been a lot of support for this over the years, especially when some of the more liberal have been in office many years. Our own Helen Chenoweth believed in this and refused to serve another term. So she left office when she was doing a lot of good.
Think about it this way. Right now we had lame duck officers: those who were not re-elected and who were serving out their terms. So, what about a person who is coming up on that last term and will not be able to serve another term because of term limits? You will have a lame duck Representative for two years and a lame duck Senator for six years. They will know they will not have to stand for election and can do whatever they please. Truly the ballot box is the best term limits program. If everyone knows they will have to stand for election they will be more responsive to the requirements of the electorate.
“Federal Legislative & Executive Jurisdiction Proposal 2:
“SECTION 1. The Legislatures of the States shall have authority to abrogate any provision of federal law issued by Congress, President, or Administrative Agencies of the United States, whether in the form of a statute, decree, order, regulation, rule, opinion decision, or other form.”
This would seem to violate Article I which says: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The Constitution gives to Congress certain functions. It leaves the rest to the States in Amendments IX, and X. What this is trying to do violates the existing Constitution. If the Federal Government follows the existing Constitution this provision would not be needed.
“SECTION 2. Such abrogation shall be effective when the Legislatures of three-fifths of the States approve a resolution declaring the same provision or provisions of federal law to be abrogated. This abrogation authority may also be applied to provisions of federal law existing at the time this amendment is ratified.”
This really adds nothing to the Constitution, but adds a lot of words making the Constitution longer. If the Government follows the Constitution this is not needed.
“SECTION 3. No government entity or official may take any action to enforce a provision of federal law after it is abrogated according to this Amendment. Any action to enforce a provision of abrogated federal law may be enjoined by a federal or state court of general jurisdiction in the state where the enforcement action occurs, and costs and attorney fees of such injunction shall be awarded against the entity or official attempting to enforce the abrogated provision.”
This sounds great, but who, exactly, is going to enforce this provision? If the Federal Government is in violation the same government is not going to punish itself.
“SECTION 4. No provision of federal law abrogated pursuant to this amendment may be reenacted or reissued for six years from the date of abrogation.”
Again, if the present Constitution is followed this provision seems to be unnecessary. Same thing here: Who is going to enforce this provision? If the President passes any rule which becomes law, it is unconstitutional. Same with the Supreme Court. The President can give directives as to how certain laws are to be enforced, but he cannot pass new laws. Neither can the Supreme Court make any laws.
43 Support, 5 Opposed, 2 Absent/Abstain. Idaho voted in favor.
Now consider this “abrogate any provision of federal law” etc. “Article I, Section 1 says All legislative Powers herein granted shall be vested in a Congress of the United States…” Article I, Section 8 lists the things Congress is permitted to do: That is the limit. The Constitution does not provide any provision for states to abrogate those things. Then the question comes up as to who is going to enforce these new requirements. Some of this may sound good, but how will it all work out?
Further, the states may not take away power that is specifically given to Congress in Article I, Section 1. Congress cannot go beyond what is given in Article I, Section 8. The rest is left to the people under (We the People of the United States) who formed the Constitution, and the Ninth and Tenth Amendments reserve powers to the states.
“Fiscal Restraints Proposal 2: (sic)
SECTION 1. Congress shall not impose taxes or other exactions upon incomes, gifts, or estates.”
It would be simpler to just repeal Amendment XVI, the Income Tax. It is also possible that this amendment was not actually ratified.
“SECTION 2. Congress shall not impose or increase any tax, duty, impost or excise without the approval of three-fifths of the House of Representatives and three-fifths of the Senate, and shall separately present such to the President.”
Article I, Section 7 says: “All Bills for raising Revenue shall originate in the House of Representatives;” There is also a taxing provision concerning providing for the military in Article I, Section 8. Is this provision really needed?
“SECTION 3. This Article shall be effective five years from the date of its ratification, at which time the Sixteenth Article of amendment is repealed.”
33 Support, 14 Opposed, 3 Absent/Abstain. Idaho supported this proposal.
If the 16th Amendment is repealed the government will just print more money, or borrow more money. The solution is to follow the Constitution.
“Federal Legislative & Executive Jurisdiction Proposal 3:
Whenever one quarter of the members of the United States House of Representatives or the United States Senate transmits to the President their written declaration of opposition to any proposed (sic) of existing federal administrative regulation, in whole or in part it shall require a majority vote of the House of Representatives and Senate to adopt or affirm that regulation. Upon the transmittal of opposition, if Congress shall fail to vote within 180 days, such regulation shall be vacated. No proposed regulation challenged under the terms of this Article shall go into effect without the approval of Congress. Congressional approval or rejection of a rule or regulation is not subject to Presidential veto under Article 1, Section 7 of the U.S. Constitution,” – 42 Support, 5 Opposed, 3 Absent/Abstain. Idaho supported this Proposal.”
It is a fairly simple matter: the Federal Government needs to abide by the Constitution.
Article I., Section 1 says: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” That is a fairly simple statement. The President has no legislative powers so any legislation he may have done is invalid. The Supreme Court has no legislative powers, so anything it may have done to make law is invalid also.
The problem is, how are you going to enforce this? The states already have the power by simply ignoring the new provision, but it has rarely been used.
The Constitution is based on the doctrine of “Separation of Powers”. It includes the Congress, the President and the Judicial. It also includes the states. No one of them is supposed to have power over the other.
CONCLUSION
There is certainly some merit in trying to overcome some of the excesses of the Federal Government. I do not believe, however, that the above Proposals will go very far toward that objective. I would list the following problems as I see them:
- Compared to our present Constitution these Proposals are simply too wordy.
- There is plenty of wiggle room within each Proposal. It would be too easy to ignore the new requirements.
- In some cases the states would be attempting to take over a task that is clearly given to the Federal Government. (Article I, Section 8)
- Term Limits sound good on the surface but it has the result that a poor legislator will have no incentive to do better because he will not have to stand for an election again.
- Our great Constitution gives us three branches
- Article I is Legislative (The House and Senate)
- Article II is Executive (The President)
- Article III is Judicial (The Supreme Court and lower courts.)
- Rather than a Balanced Budget Amendment why not insist that all unconstitutional activity be stopped.
- Our problem is not Amendment, but Enforcement.
- No matter what is done there will always be the problem of just who is going to enforce the law as it would then stand. The states gave us the Federal Government and the States need to band together and insist that the Federal Government live within the Constitution as it presently stands. The states under ‘We the People of the United States’ established the Constitution. The Federal Government did not form the states.
- As mentioned all the legislative powers are given to Congress and not to the President or the Supreme Court.
- And those legislative powers are defined in Article I, Section 8.
- Anything not covered in Article I, Section 8 is left to the States as in the Ninth and Tenth Amendments.
- The States have to share the blame for where we are today as they were more than willing to allow the Federal Government to operate outside the Constitutional limits as long as there was some money for them. The meaning of this is that ordinarily the Fed has more money than the states. This is mainly because of the operation of the XVI Amendment which gave us the Federal Income Tax. (1913)
- Rather than amending the Constitution it is time that we began to elect men and women of character who will abide by the same. At this point this will not be easy as much has been given away, but it must be done if we are to survive as a nation.
There are a number of videos on the subject of the revision of the Constitution. This is probably the best on the subject. Change it or Obey it: Why the Constitution is the Solution.
Published on Dec 22, 2016 (1 hr, 29 minutes) Video
We’re only a handful of states away from the calling of a Balanced Budget Amendment (BBA) Article V convention. Which side are you on in the escalating debate over holding a constitutional convention for a whole variety of reasons? In this engaging video Robert Brown helps you make up your mind by analyzing (1) Marketing Claims of Convention Promoters; (2) Proposed Amendments; and (3) True Constitutional Solutions.
