It is time for a Convention of the States

We have some bad news for American conservatives: The leaders of our party, the once Grand Old Party, are trying to figure out a way to win elections without us, and if or when they do, they will abandon us like yesterday’s trash.

If you have any question about this, you need not look any further than this National Journal story from yesterday, reporting that former Florida Gov. Jeb Bush has “announced” on his Facebook page that he is “actively exploring” a presidential bid in 2016. Spoiler alert: Jeb Bush is not your dad’s conservative.

We’re not sure if “actively exploring” a bid is really much different than “considering a run” or “weighing his options.”

But what we are sure of is that Jeb Bush is trying to figure out a way to win the Republican presidential nomination without the conservative base. We are sure that he is the preferred candidate of the GOP establishment, and that is because he is the preferred candidate of the GOP donor class...

All of these things are not supported by the Republican Party's conservative base. But that doesn't matter to the GOP leadership and the GOP donor class.

What also doesn't matter to either the Republican leadership or the donors they are beholden to is the fact that, thanks to conservatives, the Republican Party just experienced a wave election, resulting in a record number of GOP congressional lawmakers come January. state legislatures around the country, too.

So, what are conservatives to do when the leaders of their chosen party have become nearly indistinguishable from liberal Democrats? Vote? Write letters and emails? Make phone calls? Stay at home and refuse to participate? Withhold our financial support?

My opposition is this ... a Constitutional Convention puts EVERYTHING on the table for discussion. Want to re-write that pesky right to bear arms ... no problemo. Want to eliminate checks and balances ... easy peasy. Want to pack the supreme court ... go for it. Want to change America from a Republic to a Democracy, a Monarchy or a Dictatorship? You got the power baby! Everything ... and I mean everything from the Bill of Rights to each Amendment in the constitution gets to be RE-WRITTEN. People pushing this cr*p are the spawn of Satan because it literally would be the end of America.

Now, just who do you think would actually be at the convention and be allowed to vote? Can you guarantee that you can give me a majority of delegates that would actually stand up for America and not be socialists in disguise? ... Would it be you or me voting? Hell no! It would be the morons that got us into this mess in the first place ... and we would be taking off what little leash we have on them and telling them to do the right thing. Only a complete idiot would sign up for that ...

The amendatory process under Article V consists of three steps: Proposal, Disposal, and Ratification.

Proposal:

There are two ways to propose an amendment to the Constitution.

The Congressional Method requires the House and Senate to pass an amendment by a two-thirds majority.
The Amendments Convention Method requires the legislatures of two-thirds of the states to petition Congress to call a Convention for Proposing Amendments. The states may request a single-subject convention or a general convention open to all subjects. Once the two-thirds threshold is reached, Congress is required to set a time and place for the convention.

Article V gives Congress and an Amendments Convention exactly the same power to propose amendments, no more and no less.

Disposal:

Once Congress, or an Amendments Convention, proposes amendments, Congress must decide whether the states will ratify by the:

State Legislature Method, or the
State Ratifying Convention Method.

The State Ratifying Convention Method has only been used twice: once to ratify the Constitution, and once to ratify the 21st Amendment repealing Prohibition.

Ratification:

Depending upon which ratification method is chosen by Congress, either the state legislatures vote up-or-down on the proposed amendment, or the voters elect a state ratifying convention to vote up-or-down. If three-quarters of the states vote to ratify, the amendment becomes part of the Constitution.

Forbidden Subjects:

Article V contains two explicitly forbidden subjects and one implicitly forbidden subject.

Explicitly forbidden:

No amendment may be added to the Constitution concerning slavery or capitation taxes until 1808. We’re past that deadline.
No amendment may be added to the Constitution to change the principle of equal representation in the Senate unless every state deprived of that right approves. If California wants five senators, every state must have five senators. To permit violation of this principle, every state would have to ratify the amendment, not just three-fourths.

Implicitly forbidden:

The Constitution of 1787 may not be abrogated and replaced with a new document. Article V only authorizes “a convention for proposing amendments to this Constitution”; therefore, the Constitution of 1787 is locked in place forever. Congress and an Amendments Convention have exactly the same Proposal power; therefore, neither Congress nor an Amendments Convention can start over. Both bodies can only propose amendments. To permit the drafting of a new constitution, this provision in Article V would first have to be repealed; it would be a two-step process.

I have two reference works for those interested.

The first is from the American Legislative Exchange Council, a conservative pro-business group. This document has been sent to every state legislator in the country.

Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers

The second is a 1973 report from the American Bar Association attempting to identify gray areas in the amendatory process to include an Amendments Convention. It represents the view of the ruling class of 40 years ago. While I dislike some of their conclusions, they have laid out the precedents that may justify those conclusions. What I respect is the comprehensive job they did in locating all the gray areas. They went so far as to identify a gray area that didn't pop up until the Equal Rights Amendment crashed and burned a decade later. Even if you find yourself in disagreement with their vision, it's worth reading to see the view of the ruling class toward the process.

Report of the ABA Special Constitutional Convention Study Committee

I’m in the category: Go for it but have a back-up plan just in case.

Go for it and hope that all hoops get jumped through - good, solid proposed amendments (ones that would result in a massive, hopefully 80%, reduction in government); well-written amendments that will minimize SCOTUS rewrite from the bench (hard to do - they would try to redefine “is” if they could); 38 states ratify; the biggie: finding the mechanisms of enforcement that will actually shut down otherwise eternal-life bureaucracies and force tens of thousands of government workers out of their government jobs. IMO this willing self-destruction of government which I’m not sure has ever been seen in history, would truly be a miracle, but America was founded on such miracles.

Back-up plan: state nullification of unconstitutional laws and rulings leading to possible financial independence from the feds after they threaten to cut off funding.

Your objections seem to gather around the conceived danger of a runaway convention. In my previous post I have gone through the arithmetic I can only say that a runaway convention is mathematically possible but morally impossible. The numbers are just that much tilted in our favor.

If the arithmetic lies and we have a convention which seeks to pack the Supreme Court as you fear, there is no constitutional prohibition against doing so now. If the left wants to repeal the Bill of Rights they have as much access today the amendment process as we do and to believe that they will not use it if they see a clear chance is naïve. So for conservatives to implement Article V in no way empowers the left to the degree to which they are not already empowered.

Who do I think will be at the convention? Some pretty bad actors but they will be different actors for the most part than those who hold center stage in Washington. Therefore they might not be more noble but their corruption will be different. That is the essence behind the basic constitutional principle of separation of powers. We do not seek salvation in politics through a Messiah-we leave it to the Democrats to find one every season- but through the system.

Finally, I ask you to consider the cost of inaction and in that context I invite your attention to a post I usually introduce at this point in the discussion:

Nathan Bedford's first Maxim of the American Constitution:

The Constitution has become so distorted in interpretation and application that it has become at best ineffective in protecting liberty and at worst an instrument inflicting tyranny.

Nathan Bedford's second Maxim of the American Constitution:

The American Constitution is being amended everyday without the consent of the governed.

In order to believe that a Convention of the States presents a greater threat to liberty than our current state of politics one must believe:

1. The Constitution is not being amended by three women in black robes +1 liberal in black robes +1 swing vote on a case by case basis.

2. The Constitution is not being amended at the caprice of the president by executive order.

3. The Constitution is not being amended at the caprice of the president when he chooses which laws he will "faithfully" execute.

4. The Constitution is not being amended daily by regulation done by an unaccountable bureaucracy.

5. The Constitution is not being amended by simply being ignored.

6. The Constitution is not being amended by international treaty.

7. The Constitution is not being amended by Executive Order creating treaty powers depriving citizens of liberty as codified in the Bill of Rights.

8. The Constitution is not being amended by international bureaucracies such as, UN, GATT, World Bank, etc.

9. The Constitution is not being amended by the Federal Reserve Bank without reference to the will of the people.

10. The federal government under our current "constitutional" regime has suddenly become capable of reforming itself, balancing the budget and containing the debt.

11. The national debt of the United States is sustainable and will not cause the American constitutional system and our economy to crash and with them our representative democracy, the rule of law, and the Constitution, such as it is, itself.

12. The Republican Party, presuming it gains a majority in the House and the Senate and gains the White House, will now do what is failed to do even under Ronald Reagan and George W. Bush and balance the budget, reduce the debt, stop regulating, reform the tax system, end crony capitalism, appoint judges who will not betray us and, finally, listen to the people.

13. That a runaway Convention of the States will occur, that it will persuade the delegates from conservative states, that it will be ratified by three quarters of the states' legislatures among whom conservatives control with a supermajority, and the end result will somehow be worse than what we have now.

14. If we do nothing everything will be fine; if we keep doing what we have been doing everything will be fine; we have all the time in the world.

There are 99 houses in 50 state legislatures. Any leftist amendment would require only 13 of these legislative bodies from 99 to defeat ratification.

How many legislative bodies would it take to defeat a conservative amendment?

After the last election Republicans control 69 houses of the 99 state legislative houses.

So leftists have control of (99-69) = 30 houses, or (50-31) = 19 legislatures. They need only 13 houses to block the ratification? If so, they have them already.

Therefore, here is one more item for your fine list. Perhaps it's a variant of (1):

5. The ratification will be blocked by the leftists, as the bar for unanimity is very high, and there are enough Democratic houses to do this.

But note that this is not to oppose the idea; others have pointed out that massive popular support for changes may make it a political suicide to go against ratification. This is just to keep the math in order.

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