Publius points out the different methods of ratification, one by state legislatures and the other by state conventions. This distinction is important because it offers a wedge for leftists to sabotage the entire process. If I were a statist in Congress I would opt for the convention approach because there is a strong likelihood that the selection of the convention delegates of each state would have to be made in conformity with the decades-old Supreme Court doctrine of "one man one vote."
This means that the delegates to the state convention would be relatively less influenced by the state Senate. It opens the door to supervision by the court to make sure that minorities are properly represented. There can be huge amounts of election fraud because it is not clear that the federal election laws would apply to this procedure. Nor is it clear that the rules of the legislature of each state would apply to the conduct of the conventions leaving the field open to chicanery. Ratification by convention would be a venture into uncharted territory leaving the entire process open to ambush. It opens the entire process to endless litigation.
Furthermore, the left no doubt will insist that the delegates to the convention for the proposal of amendments (as distinguished from conventions which might be selected by the United States Congress to ratify or reject amendments proposed by the national convention) be selected in accordance with the same one man one vote requirement. If this occurs, the big leftist states of the Northeast and the West Coast will prevail and block conservative amendments from being proposed. They will be able to accomplish this because delegates might not be permitted to vote on a state basis but on basis of representing population. In other words, there will be no winner take all vote controlling a state's support or opposition to a proposed amendment, instead the issue will be decided by individual delegates who will in no way be beholden to their state but only to the concept of representation of population.
I have not done the arithmetic but I assume that conservatives would be better off having a convention for the proposal of amendments done on a state-by-state winner take all basis because, as Levin points out, we have been relatively more successful in winning state legislatures, governorships, and local offices than we have been in winning national elections.
Of course, selection of delegates for the convention to propose amendments (as distinguished from state conventions to ratify or reject amendments once proposed) cuts both ways even if they are selected on a population basis rather than on the basis of winner takes all control of the state vote. That is because even in Massachusetts and even in California there remain pockets of sanity which elect conservatives. Indeed, even New York City elected Mayor Giuliani. So the arithmetic becomes very important but so does the process by which the delegates to the convention are selected. Are they to be selected by the legislature, by the legislature with approval of the governor, or by general plebiscite on the basis of one man one vote? If one man one vote, does the would be delegate run statewide or according to a legislative district?
It is also possible that, even though the delegates are elected on a one man one vote method, their vote nevertheless will not be tossed into a pool of all delegates at the national convention to propose amendments but will be counted on winner take all basis to determine how their home state will be voting. We just don't know at this point.
As you can see, the permutations and combinations go on and on and there is no definitive answer forthcoming from the wording of the Constitution. There is guidance in both directions from the Federalist papers, from the history of the constitutional convention, from Supreme Court cases, and from the history of state conventions which have occurred but an agile lawyer will find ammunition on both sides of virtually every issue.
In this uncharted territory the question becomes not only what is required but who determines what shall be required. Much like the appointment of a Supreme Court Justice, once that is done all cases coming before the court are predictable-providing always but that justice being confirmed is a leftist. So the question arises who applies to the United States Congress to call the convention? It is a pretty good guess that that would be the state legislatures. If they do not propose amendments in identical language, is the door is open for Congress to deny the applications if the requisite 34 states have not made identical applications?
Assuming that the state legislatures can be coordinated (a very large assumption), or at least 34 of them can be coordinated, and a coherent and parallel set of proposals of amendments are submitted to Congress, the question arises what to do about Harry Reid if he simply, flatly refuses to act? The Constitution does not tell us it merely says that the obligation of Congress to act is obligatory, the operative word in the Constitution is "shall." But it does not provide a remedy for Harry Reid's recalcitrance.
Incidentally, there is no requirement In Article V that the states propose amendments, only that they apply for convention to propose amendments. So the requirement for the states to propose coordinated amendments is something which does not appear in the Constitution, but which has been claimed by Congress, and would, of course, be claimed again by Harry Reid. Who's to say what is required?
If Congress does not do its duty, to whom do the aggrieved states have resort? Do they go to the Supreme Court which is likely to call this a political question rather than a justiciable question? Do conservatives want to open the door to supervision by the Supreme Court an endless rounds of the litigation? Do the aggrieved states conduct a convention without the imprimatur of the United States Congress? If they have 34 states can they go ahead? Can every stage of this proceeding be delayed by suits through the federal judiciary system which take years to resolve while sentiment changes? Assuming Congress it does call a national convention, what happens if Congress sets terms and conditions of its own making out of thin air without authorization in the Constitution? For example, suppose Congress imposes a time limit, suppose Congress sets quorum requirements, requirements for the certification of delegates, rules respecting the procedural conduct of the convention, winner take all vs. one man one vote?
These issues are raised not to discourage conservatives from seeking this Article V remedy, indeed I agree with Levin that time is running out and the alternative is disaster, these issues are raised to acquaint conservatives with the challenges ahead so that we can marshal our arguments to prevail.
Finally, there is utility in gaining political leverage by pursuing this process. It might put the fear of God in Rinos that their rice bowl will finally be broken and it might just encourage some disaffection in the ranks of the Democrat party. There is a lot of upside and very little downside.
