Mark Levin still promoting an Article V convention. Why?

9/25/2013 | johnwk

[nathanbedford]

Here is one reply from some time ago which explores some of the difficulties which might be encountered in an Article V proceeding. The one man one vote ploy could represent a real trap. Here is the rather lengthy reply:

When it comes to the issue of a runaway convention, or more to the point, a convention which might be taken over by a coalition of red states delegates to propose and in turn ratify amendments to the Constitution which would be repugnant to conservatives it is important to have the humility to say, we simply do not know.

We all can read the language and we all can take our view of the language but the one thing we must guard against is a conceit that we can divine how this largely uncharted process will play out when it involves power-hungry entities, like so many nations in the Security Council, struggling for power and even for survival. This is not a matter of reading the Constitution and concluding the way is clear, it is not. Remember our original constitutional convention was done by our founding fathers whom many would agree represented a unique occasion in history for the gathering together of statesman of the highest order. I don't think we can rely on delegates to be of the same quality today.

We do not even know all the questions, we certainly don't know the answers, we do not know who will decide the questions. We do not even know if it will be solved as a legal question, a political question, or some combination of the two. We do not know that would be solved by the Congress of the United States, the Supreme Court, the convention itself, the states in expressing and limiting the scope of their applications for convention, or the states in purporting to bind their delegates. We do not know if the Congress purports to control a convention by legislation containing its "call" as authorized by the Constitution and thereby attempts to extend its authority over the convention, whether that would prevail. And if that method is not accepted we do not know what would happen if Congress simply failed to fulfill its mandatory duty to choose a method for ratification.

Suppose Congress says that the convention shall vote by individual delegates and that the individual delegates shall be elected and apportioned upon the population of every state. Let us then assume that some states comply and other states do not. Let us assume that some states who do not comply send one delegate to represent the whole state. Let us assume when the delegates arrive at the convention, they vote to set the procedure of the convention and declare that each delegate is a free agent not bound by any restrictions placed upon him by his state. Let us further assume that all of these parties at every step of this process have gone to court and asked the Supreme Court and inferior courts to intervene. Let us assume that some courts have done so and some have not, let us further assume that the courts have ruled one way on one issue and another way on the next.

Under this factual pattern anyone who tells you that he knows how this is going to play out is claiming second sight. These hypotheticals are just a fraction of the permutations and combinations which might occur under An Article V process. I would reject the bland assurances of anyone on the subject as being the product of a defective humility quotient.

No one can say that the convention might not runaway. I don't believe it will, I think the language of the Constitution is clear enough where it does speak but I am very concerned about the one man one vote threat. And I am really concerned about the same problems arising in the state conventions, if that method is chosen by Congress, to ratify or reject the proposed amendments. Does one man-one vote apply there? Do the votes of the delegates get registered according to their states or thrown into a general pool? If the latter, combined with a similar procedure in the convention to propose amendments, yes indeed, there could be a disastrous result.

I think it unlikely and one should weigh the probability of the harm. We must also judge the harm, in my view I highly probable certainty of harm, if we do nothing and we passively witness the Republic meander down the road toward the cliff, I think this rather remote risk of a runaway convention is certainly worth taking.

For the record, here is a portion of the ABA report which speaks of apportionment, one must remember that we don't know who will decide these issues, nor do we know how things will play out in a highly charged political atmosphere in which the stakes are infinite:

Apportionment of Delegates

Although there are no direct precedents in point, there is authority and substantial reason for concluding, as we do, that the one-person, one-vote rule is applicable to a national constitutional convention. In Hadley v. Junior College District, the Supreme Court held that the rule applied in the selection of people who carry on governmental functions. While a recent decision, affirmed without opinion by the Supreme Court, held that elections for the judiciary are exempt from the rule, the lower court stated that “judges do not represent people.” Convention delegates, however, would represent people as well as perform a fundamental governmental function. As a West Virginia Supreme Court observed with respect to a state constitutional convention: “[E]ven though a constitutional convention may not precisely fit into one of the three branches of government, it is such an essential incident of government that every citizen should be entitled to equal representation therein.” Other decisions involving conventions differ as to whether the apportionment of a state constitutional convention must meet constitutional standards.

Of course, the state reapportionment decisions are grounded in the equal protection clause of the Fourteenth Amendment, and the congressional decision in Wesberry v. Sanders was founded on Article I, Section 2. Federal legislation providing for a national constitutional convention would be subject to neither of these clauses but rather to the Fifth Amendment. Yet the concept of equal protection is obviously related to due process and has been so reflected in decisions under the Fifth Amendment.

Assuming compliance with the one-person, one-vote rule is necessary, as we believe it is, what standards would apply? While the early cases spoke in terms of strict population equality, recent cases have accepted deviations from this standard. In Mahan v. Howell, the Supreme Court accepted deviations of up to 16.4% because the state apportionment plan was deliberately drawn to conform to existing political subdivisions which, the Court felt, formed a more natural basis for districting so as to represent the interests of the people involved. In Abate v. Mundt, the Court upheld a plan for a county board of supervisors which produced a total deviation of 11.9%. It did so on the basis of the long history of dual personnel in county and town government and the lack of built-in bias tending to favor a particular political interest or geographic area.

Elaborating its views on one person, one vote, the Committee believes that a system of voting by states at a convention, while patterned after the original Constitutional Convention, would be unconstitutional as well as undemocratic and archaic. While it was appropriate before the adoption of the Constitution, at a time when the states were essentially independent, there can be no justification for such a system today. Aside from the contingent election feature of our electoral college system, which has received nearly universal condemnation as being anachronistic, we are not aware of any precedent which would support such a system today. A system of voting by states would make it possible for states representing one-sixth of the population to propose a constitutional amendment. Plainly, there should be a broad representation and popular participation at any convention.

While the representation provisions of S. 1272 allowing each state as many delegates as it has Senators and Representatives in Congress are preferable to a system of voting by states, it is seriously questionable whether that structure would be found constitutional because of the great voting weight it would give to people of one state over the people of another. It can be argued that a representation system in a convention which parallels the structure in Congress does not violate due process, since Congress is the only other body authorized by the Constitution to propose constitutional amendments. On the other hand, representation in the Congress and the electoral college are explicit parts of the Constitution, arrived at as a result of compromises at the Constitutional Convention of 1787. It does not necessarily follow that apportionment plans based on such models are therefore constitutional. On the contrary, the reapportionment decisions make clear that state plans which deviate from the principle of equal representation for equal numbers are unconstitutional. As the Supreme Court stated in Kirkpatrick v. Preisler:

“Equal representation for equal numbers of people is a principle designed to prevent debasement of voting power and diminution of access to elected representatives. Toleration of even small deviations detracts from these purposes.”

In our view, a system allotting to each state a number of delegates equal to its representation in the House of Representatives should be an acceptable compliance with one-person, one-vote standards. We reach this conclusion recognizing that there would be population deviations of up to 50% arising from the fact that each state would be entitled to a delegate regardless of population. It would be possible to make the populations substantially equal by redistricting the entire country regardless of state boundaries or by giving Alaska one vote and having every other state elect at large a multiple of 300,000 representing its population or redistrict each state on the new population unit. None of these methods, however, seems feasible or realistic. The time and expense involved in the creation and utilization of entirely new district lines for one election, especially since state election machinery is readily available, is one factor to be weighed. Another is the difficulty of creating districts crossing state lines which would adequately represent constituents from both states. There is also the natural interest of the voter in remaining within his state. Furthermore, the dual nature of our political system strongly supports the position that state boundaries be respected. Abate v. Mundt, although distinguishable regarding apportionment of a local legislative body, suggests an analogy on a federal level. The rationale of the Court in upholding the legislative districts within counties drawn to preserve the integrity of the towns, with the minimum deviation possible, could be applicable to apportionment of a convention. The functional interdependence and the coordination of the federal and state governments and the fundamental nature of the dual system in our government parallel the relationship between the county and towns in Abate. Appropriate respect for the integrity of the states would seem to justify an exception to strict equality which would assure each state at least one delegate. Thus, a system based on the allocation of Representatives in Congress would afford maximum representation within that structure.

[Kit cat]

As always so great to have your insight!

[Impy]

“The states” this, “the states” that, always with “the states”.

Newsflash, the states are mostly run by RINOs and democrats just like the federal government is.

Lets look at 2 of our BEST states

Texas, Squishy rinoish Governor Perry, RINO LT Governor Dewhurst in command of the State Senate, and RINO State House Speaker Joe Straus is the worst of the 3.

Utah, Squishy Governor vetoes constitutional carry, not enough votes to override him, in the most conservative state in the country.

It’s THE PEOPLE versus THE GOVERNMENT not states versus feds. Federal, state, and local government all work together to oppress us. It is unendingly perplexing to me why some people think state level politicians still exist in 1860 and are against federal power, most aren’t, most who are just resent that they don’t get to do all the oppressing themselves.

To get Levin’s ridiculous scheme to work you need to elect Tea party majority (and in many state’s a super majority is need to ratify amendments) legislatures in 38 states (needs to ratify, 34 needed to call the convention) because most of the current legislatures, even the Republican ones would just as soon use Levin’s book as TP than think it’s a good idea.

If you can accomplish that difficult feat that means you could also elect a Tea Party Congress that could pass amendments without a need for a convention, and more importantly a Good President to go along with them, one who will appoint good Judges who will stop abusing the constitution and take away the “need” for any alterations.

Not only is this a pipe dream but it’s unnecessary one at that. If this was candyland this would be a great idea, but unfortunately we live in the USA in 2013. This is not a real world idea.

If an article V convention is ever called, in this the real world, it’s just as likely to result in a feeding frenzy of BAD amendments being proposed because most of the current state legislators are not exactly great friends of liberty.

I hope for Levin’s sake that he just wanted to get people thinking and talking about the constitution. If he actually thinks this is feasible that doesn’t say much about him.

Personally I think he’s just trying to sell his book, end of story.

But many people here think he’s Jesus so they treat his speel like the Bible.

[okie01]

38 States is all but 12.

However, we have a better chance of gaining the accession of 38 states than we do of ever achieving a filibuster-proof Senate.

Thirty of the fifty states are led by Republican administrations, with Republican legislatures.

I’d be happy to name you at least 12 states that will NEVER ratify any of Levin’s amendments. That is, if you can’t list them off on your own. California, New York, Massachusetts . . . shall I keep going? <

You'll have to stop when you get to 15. So, the job boils down to flipping only three. Difficult...but not impossible.

Levin's point is that a successful Article V convention has a greater probability of reversing the country's direction than any other political act.

[John Valentine]

The way we get to a civil war is if we fail to avail the peaceful remedies we have.

Your concerns are, frankly, frivolous, especially when set against the reality that all the abuses you appear to fear are already the modus operandi of the federal Leviathan.

The reaction that you presuppose from the Federal Government is so outwith any precedent, law or civil custom that civil war would indeed be the appropriate response. Let’s see where it goes, in my opinion it can’t be worse than the direction we are headed at the moment - and that’s not a hypothetical, it’s what we see every day.

As to the specific question, if Congress acts to try to impose ANYTHING at all on the convention other than doing its ministerial duty of naming the city and setting the date for the convention to convene, the States would be free to ignore any such overreach.

[SeminoleCounty]

We already have a process to amend the Constitution. Whenever someone mentions “Const Convention” their ultimate goal is eliminating the Const

Also...Levin pretty much is a DC lobbyist who has meaningless court decisions in his favor. He also attacked Obama Eligibility folks while supporting Obama on the Eligibility issue....that right there would disqualify anyone from offering suggestions on Const revision...much less other legal matters

Just because someone has a talk show does not make them conservative

[SeminoleCounty]

Fact is....Karl Marx is a big supporter of Free Trade. Also anyone supporting Free Trade with Communist China is supporting Communism

Oh...and Al Gore...Barack Obama....Jimmy Carter...George Soros ....et al...support Free Trade....

Our Founding Fathers didn’t. Go study some history

[JOHN W K]

I see you never answered any of the questions I posted at the top of the thread. Especially why he promotes the socialist tax on profits, gains and other incomes.

JWK

[JLS]

Actually the biggest reason the US Constitution was written was to provide for free trade. Gee, and you claim to speak for history. Oh well I guess you the supporters of one of the three plundering isms are everywhere even on a site with Free in the name.

[Publius]

I have two reference works.

The first is from the American Legislative Exchange Council, a conservative pro-business group. That makes me believe they just might be the good guys. I like the conclusions to which the author arrived. 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. I don't like some of their conclusions, but 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 how the ruling class will try to dominate an Amendments Convention.

Report of the ABA Special Constitutional Convention Study Committee

[John Valentine]

You would have to ask Mark Levin. I don’t speak for him.

Beyond that, I don’t think that you can honestly say that he “promotes” these taxes, even if he accepts some degree of inevitability. Again, you would have to ask him. As for taxes on gains, I have the impression that Levin is against these, as am I, but I don’t have a ready reference. BTW, gains are not income, not even “other” income. Gains are not income at all.

[chris37]

The government is never going to reign itself in.

It is never going to limit itself.

It is never going to cease conspiring to consume everything that exists.

The states must do it.

What Levin has proposed is the last viable civil option that can be successful.

Electing republicans isn’t going to help us in any way, shape or form, they are the enemy just as demonrats are.

[Georgia Girl 2]

Mark Levin is very misguided in this idea but on the other hand remember he is also trying to sell a book. I hate to be cynical but.

The convention is never going to happen and be thankful for it.

[ziravan]

But even the pro Art V people say getting liberty amendments passed is a long shot, a Hail Mary.

38 States. Or, conversely, 13 States can derail the process.

Our founders envisioned amendments as a way to deal with issues they couldn’t anticipate.

They had other ideas for an out of control fedgov. Read Federalist 46.
The beauty of the States telling the fedgov where to jump? You don’t need 38 States to make a difference.

Just one State. Then 2. Then 5. Pretty soon you have a full blown attack on the fedgov in progress, and you do it on OUR turf: Come and Take It.

It seems far more likely that we can marshal resistance in a few key states than it does to make a Hail Mary pass which is just as likely to result in a game ending interception.

[precisionshootist]

"How do you propose to stop them when they have every vested interest in having their say? Moral indignation? I can name you 10 different ways that Washington is ignoring the Constitution without blinking an eye, and so can you. Your proposal to stop them: use the Constitution against them. That’ll teach them. Then they’ll have to play by the rules. It’ll be completely different than it is now. It’s time for drastic action, but this isn’t it. The States do have the power to break the fedgov. An Art V convention isn’t going to accomplish that."

Washington is NOT and can not ignore the Constitution. If they could do that we would not be having a free speech conversation on Freerepublic. We would not have millions of firearms in private hands. We would not be free to move about the country.

What has happened is Washington has found legally arguable loopholes in the Constitution and they have used these loopholes to expand their power beyond the intent of the founders. The good news is the founders actually anticipated this very thing and added the option for the states to amend the Constitution and close these loopholes through a state convened and controlled convention.

So the answer is yes Washington will be stopped and will follow the constitution as amended by the states.

[JOHN W K]

The American Legislative Exchange Council has been trying for many years to get an Article V convention convened. Back in the 1980s they were promoting a convention to adopt a fraudulent Balanced Budget Amendment adopted which not only had a number of loopholes a battleship could float through it, but the amendment, if adopted, would have actually made it constitutional for Congress to not balance the annual budget.

I was very active on this particular issue back in the 80s I learned ALEC is a very dangerous group! Do some research on them.

JWK

America will not regain her honor and splendor until the blood of tyrants is made to flow in our streets.

[chris37]

Yes, it is a Hail Mary pass, I definitely agree on that.

Essentially, I see it as the last possible civil solution to this matter that also keep the country intact.

I think it would be a good idea to try that method first, but for my own part, I pretty much support anything.

This isn’t working.

I am not going to serve my public servants, and that is all there is to it.

We are going to butt heads, and I do not back down like some stinking French Repubican.

[Jacquerie]

Your knowledge of the events of 1787 is deficient. First off, THEY didn’t throw out anything. Did you get your info from Lew Rockwell?

[Jacquerie]

Article V Ping.

The framers gave us a peaceful means to correct mistakes, the biggest being the 16th and 17th amendments.

Ninety nine percent of the evils that have befallen our nation are derived from those two errors.

In order to possibly restore liberty, they must be excised from the constitution. There is no alternative. Mark Levin's additional amendments to enhance federalism are also superb.

The naysayers to an Article V convention haven't offered an alternative solution; they can't because there aren't any.

[ziravan]

Read the federalist papers. Our founders devised a govt that checked itself at the fed level and failing that reserved more than enough power to the states and the people to get the job done.

The idea that we’d resort to an Art V to put the fed in its place would have been nonsense to them. The states already have more than enough power to tell Washington to bugger off. All that’s lacking is resolve.

Why throw this hail mary when Johnny Football is on the sidelines and ready to play?