Is it time for a constitutional convention called by the people re: illegal immigration?

[Jim Robinson]

Just heard O'Reilly say that even though over 75% of the American people are opposed to illegal immigration, the Congress is unwilling to do anything about it. Now we all know that it is highly unlikely that representatives of either party are willing to commit to any meaningful immigration reform, so is it time for we the people through our state legislatures (requires two thirds of the states) to call for a convention to propose a constitutional amendment defining the federal government's role and responsibility for defending our borders? If so, how should such an amendment be worded and how would we go about getting two thirds of the state legislatures to act?

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The essay below was posted by Publius at reply number 253:

To: Jim Robinson

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.
--Article V of the Constitution of the United States

The Founding Fathers left us two methods to propose amendments to the Constitution.

1. The Congressional Method requires both Houses of Congress to approve a proposed amendment by a two-thirds vote. For over two hundred years, Americans have chosen to use this particular method to amend the Constitution, but it is not the only method established in Article V.
2. The Convention Method requires that the legislatures of two-thirds of the states apply for an Article V Convention. According to Hamilton, Madison and other Founders, along with several US Supreme Court decisions, Congress is then obliged to call a Convention for Proposing Amendments. The states would send delegates to the convention who would in turn propose amendments directly, bypassing Congress.

The Framers also left us two methods to ratify amendments, and they authorized Congress to decide which method was appropriate. The Supreme Court has ruled that Congress is limited to choosing one of the two methods.

1. The Legislative Method requires the legislatures of three-fourths of the states to ratify a proposed amendment.
2. The Ratifying Convention Method requires the ratifying conventions of three-fourths of the states to ratify a proposed amendment. The Ratifying Convention Method has been used only twice in our history: once to ratify the Constitution itself, and once to ratify the 21st Amendment repealing Prohibition.

One thing is perfectly clear: Article V gives the States Assembled in Convention the same proposal rights as Congress -- no more, no less. And no matter whether an amendment originates with Congress or a Convention for Proposing Amendments, it must be ratified by three-fourths of the states before it can become part of the Constitution.

The Framers’ Safety Valve

Fearing a tyrannical Congress would block the amendment process, the Framers formulated Article V, wording it so as to fence off the Constitution from hostile or careless hands. They were careful to enumerate Three Forbidden Subjects.

1. Altering the arrangement known as slavery until 1808, a ban that has been lifted both by time and war.
2. Altering the arrangement of equal representation in the Senate.
3. Writing a new constitution.

The last Forbidden Subject is implied, rather than explicit, like the first two. The Framers took great pains to avoid using the term “constitutional convention”. Instead, the Founding Document refers to a “Convention for proposing Amendments...as part of this Constitution”. An Article V Convention is strictly limited to proposing amendments to the Constitution of 1787, and it is forbidden to consider, compose, or even discuss a new constitution. No matter what amendments may be proposed, the Constitution must remain intact, else the actions of the convention become unconstitutional. Unless Article V is amended first to allow it, a Convention for Proposing Amendments can never become a true constitutional convention, i.e., it can never write a new constitution. And neither can Congress.

How It Would Work

The Founding Document is silent about a Convention for Proposing Amendments, except for establishing its existence and the criterion of its call by Congress. But some things can be extrapolated from the Constitution.

1. Delegates would be elected by the people, not appointed by a governor or state legislature. The sovereignty possessed by an Article V Convention is identical and equal to Congress’ as far as the amendatory process is concerned. As citizens are elected to Congress, so it must be for convention delegates.
2. Delegates would be apportioned to the states on the basis of population according to the Supreme Court’s “one man/one vote” decision. One possible formula would elect a delegate from each congressional district and two from each state, thus reflecting the makeup of the Electoral College.
3. An Article V Convention is the property of the states, and the language used by the states to request Congress to call a convention defines the purview of that convention. In its petitioning language, the states may ask for a convention to address one subject, a plethora of subjects, or even ask for a general convention to address any subject, i.e. a revision of the Constitution.
4. Upon convening, a Convention for Proposing Amendments would elect its own officers and establish its own rules of order. Because an Article V Convention, during the brief period of its existence, possesses the same sovereignty as the other three branches of government, Congress would not have the right to regulate it or restrict its purview. There is nothing threatening here, because according to Article V, Congress possesses identical powers.
5. Amendment proposals would go through deliberation and vigorous debate as would any amendment proposed in Congress. The convention would determine the bar for approving an amendment proposal to pass it on to the states for ratification. This could be a simple majority, a two-thirds majority, or anything that the convention chose.
6. Once all amendment proposals had been passed to the states for ratification or rejected, the convention would adjourn permanently, and the delegates would become ordinary citizens again.
7. Congress would then submit the proposed amendments to the Several States by deciding whether the states should use the Legislative Method or Ratifying Convention Method of ratification.
8. If Congress chooses the Ratifying Convention Method, each state would hold an election for delegates to its state ratifying convention, which would be apportioned according to population.
9. Each state legislature (or state ratifying convention, if Congress so chose) would vote up or down on each proposed amendment. If three-fourths of the states ratified an amendment proposal, it would become part of the Constitution.

The Practical Side of a Convention for Proposing Amendments

Article I, Section 6 of the Constitution prevents a sitting congressman or senator from taking a seat as a delegate at a Convention for Proposing Amendments unless he first resigns his seat in Congress. It is safe to say that few would be willing to give up the permanent power of Congress for the transitory power of an Article V Convention.

So who would be elected by the states? Yourself, your friends, and your neighbors.

There would be no need for a party endorsement or a campaign war chest. Anyone who raised a vast sum of money or took campaign contributions from vested interests would immediately fall under suspicion. After all, an Article V Convention is about the Constitution, not pork, perks and personal power.

Anyone who wishes to run for Convention Delegate will have to know his Constitution. He will have to express strong positions on possible amendment proposals and be able to defend those positions in public. He can’t hedge, waffle or use weasel words. Before the election, voters are sure to ask the candidate to submit his favorite amendment proposals in writing, which is the best way to avoid the slippery language of politics.

Most importantly, the candidate for Convention Delegate will have to be a person of integrity, respected in his community. And that eliminates most careerists of the current political class.

The conservative caricature of an Article V Convention is a disorderly mob of statists from Massachusetts, welfare recipients from New York, and New Agers and illegal aliens from California.

The liberal caricature of a convention is a gaggle of socially maladjusted individualists from Arizona, American Gothics from Indiana, Christers from Kansas, Johnny Rebs from South Carolina, and bearskin-clad mountain men from Alaska.

And to 49 states, the name of Texas conjures up the image of sharp businessmen skinning the other delegates out of their eye teeth.

They will all be there, and that is as it should be. At an Article V Convention, everyone will have an opportunity to make his case. And everyone will have to lay his cards on the table.

Here is a possible selection of things that one could expect at a convention.

1. A delegate from New York will introduce an amendment to repeal the 2nd Amendment.
2. A delegate from Georgia will counter with an amendment to remove the Militia Clause from the same amendment.
3. A delegate from North Carolina will introduce an amendment to extend the 14th Amendment to the unborn.
4. A delegate from New Jersey will counter with an amendment to legalize abortion on demand.
5. Hawaii will introduce an amendment to abolish the death penalty.
6. Oregon will revive the Equal Rights Amendment.
7. Maryland will attempt to give the District of Columbia statehood.
8. Illinois will introduce an amendment creating an explicit right to privacy.
9. Virginia will attempt to ban flag burning.
10. Alabama will try to ban unfunded mandates.
11. Utah will attempt to restrict executive orders.
12. Florida will try to ban asset forfeiture.
13. South Carolina will attempt to codify a state’s right to secede.
14. Delegates will introduce amendments to impose term limits on members of Congress, require a balanced budget, make treaties subservient to the Constitution, change or abolish the Electoral College, and repeal the 16th and 17th Amendments.

But it’s a safe bet that only congressional term limits, a balanced budget, repeal of the income tax, a fix to the border problem, and one or more possible solutions to the problem of the Electoral College will get out of convention and be sent to the states for ratification.

And it's possible that none of the proposed amendments will receive the three-fourths ratification necessary to add them to the Constitution!

So why go through all this?

Because we as Americans need to know that our system works for us. Recent events have placed doubts in many minds, and there are those among us who would argue that the system does not work anymore and needs to be changed.

Perhaps.

But that is the beauty of the Constitution of the United States. It is designed to be changed by the people, either through their national government or -- should that government fail to satisfy their mandate -- through a second system of amendment. The Framers bequeathed us two methods of amendment so that our government and its actions will always be under our control, not the government’s.

Perhaps it’s time for the American people to show that government who’s in charge.

253 posted on 03/27/2006 7:59:45 PM PST by Publius

[Publius]

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.
--Article V of the Constitution of the United States

[Do not dub me shapka broham]

Stop kidding yourself.

If it were up to corporations and large businesses, the 13th Amendment would be repealed tomorrow.

Slave-labor is the logical extension of the low-wage business these people are after.

These are the philosophical descendents of the same people that ensconced the share-cropping system as part of the South's economy, and presided over the hacienda system even further south.

They are the ones that view migrant farming as an acceptable, even laudable, aspect of American culture.

The idea that eliminating the minimum wage is going to solve this problem is the height of absurdity.

[stainlessbanner]

same thoughts here

[Jim Robinson]

I'm not so sure about that.

[Betty Jane]

Pick a date. I'll be there for "Hands across the Border"

[Cboldt]

Beware calling a ConCon.

[Jim Noble]

All that is required is to end the immunity of officers and directors for hiring illegals, and prison terms for those that do.

End of problem.

[kittymyrib]

Excellent idea, Jim! There's nothing that strikes abject terror into the hearts of our spineless politicos than the thought of the people organizing for a Constitutional Convention. They are scared spitless of a government "of the people, by the people and for the people" because they have had absolutely no experience with that kind of government and they are pretty sure they would lose some of their royal authority if it were exercized. Let's roll!

[detsaoT]

On the first one, you will have due-process issues. On the second one, you will have discrimination problems if you restrict this tax to Hispanics, so everyone will have to suffer for the crimes of a few. On the third one, you have the same issue as the second one. Some judge will toss them out as 'profiling'.

One can carefully enact a law such that it won't deprive the rights of anyone other than the lawbreakers.

For instance, most localities already have statutes on loitering. Craft the legislation such that loitering without possession of a valid State driver's license (which would necessarily be unavailable to illegals) is aggravated trespassing (when in groups larger than a certain number), and set the penalty for violating that law to be jail time.

To keep them from "Getting off lightly," put prisoners back to work in hard, manual labor and put the appeals of these activities beyond the reach of the Judiciary (and, by supposition, from lawyers).

Towards the second one, it isn't enacted as a tax on "Hispanics." Simply follow Georgia's footsteps—If you don't have valid U.S. citizenship, proven by a State birth certificate, a passport, a naturalization card, or (again) a valid State driver's license, an additional 10% tax is levied against any international wire transfer. If that's challenged, then force everyone to suffer the crimes of a few, because I can ASSURE you that illegals are the majority of the customers of the international wire-transfer service.

For the third, there are jurisdictions already considering this. Insulate the process from the courts, and you can protect your State from being accused of "profiling." Every State's legislature has COMPLETE control over its' courts' jurisdiction, no?

[DakotaGator]

In calling for the Convention, each state could in theory give its' delegates a mandate to address only one issue.

True.

However, by its nature a Constitution Convention is not limited to one issue. The opportunity for mischief and the pressure to do so would be enormous despite instructions from the states to their delegates. That is why I proposed a single issue Council of States.

A Council of States by design would have only one issue. If it was being ignored by an unresponsive federal government, with the stroke of a pen it would become a Constitutional Convention the federal government could not ignore under threat of dissolution.

Very treacherous waters we tread here!

[Willie Green]

Roberts, Alito, and hundreds of other federal judgeships. A judge is forever and forever is a long time.

Yeah, yeah, yeah...
as if I'll live long enough to see it.
Besides, the nasty little secret behind Dubya's appointments is that they'll all subordinate our Constitution to WTO regulations and agreements.

[dalereed]

"what can we do besides hope to gain some benefit by at least registering and tracking these people?"

Fine and imprison employers of illegals, cut off their free welfare, food stamps, and medical care, and they will self deport.

[Victoria Delsoul]

Here is a especial bump for you guys.

[Do not dub me shapka broham]

I wanted to see President Pete Wilson a decade ago!

Failing that, I'd like to a Republican president who is at least willing to attempt a rollback of the damage inflicted by our current one.

[CowboyJay]

"To me, the majority is the #1 issue, and if we have to give a little now, to get more in the future, I think we should. A constitutional convention is a great idea, but only when we have a much stronger majority in Congress."

If scamnesty goes through, we'll no longer have the option of waiting it out. Whether the GOP holds a majority or not will be a moot point in less than a decade. The GOP is already infiltrated in the Senate with gun-grabbers and elitists. Scamnesty will install a permanent socialist majority in this country within 10 years. We may not even have that long if 'guest-workers' manage to con their way into suffrage.

[ConsentofGoverned]

Thank you for that - I wonder If groups like the Minutemen and VFW's and of course our FR family, would get behind such an idea, The Minutemen have done it in a limited way, but the marching of illegals by the thousands in our streets means we must do something that cannot be ignored.

[detsaoT]

You're absolutely correct in your assessment of the situation—the Federal government is a train speeding down the tracks with no conductor. They stopped listening to the American public (identified as anyone who lives outside of the Beltway, outside of New York City, and outside of Los Angeles) decades ago.

Perhaps this is the failure of our political system.

[TheLion]

Couldn't the states put armed deputies on the border like Texas did in the early 1900's?

I have often wondered what powers the states possess when the government has abdicated it's responsibility under the constitution.

They can certainly, not provide drivers licenses, tax wire transfers, arrest loiters, fine employers and generally make the life of illegals miserable.

[detsaoT]

Hear hear! Another excellent idea—we too often focus on the President, yet other than appointments (which, as Jim R. has pointed out, is extremely important), the CONGRESS is the source of power in our Government. Focus on where the problem is, NOT where the symptoms are!

[pissant]

Pete Wilson had SOME good points. Being conservative wasn't one of them. I can't think of ANY man alive right now I'd rather see as CIC than the current occupant. If I had to choose, I'd take the VP.

[BigSkyFreeper]

Just heard O'Reilly say that even though over 75% of the American people are opposed to illegal immigration, the Congress is unwilling to do anything about it.

Business as usual in Washington.