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?

---

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

[festus]

There is nothing I fear more than a constitutional convention.

An amendment would be ok by me but not a full fledged convention. No telling what would happen to the bill of rights in a convention.

[Modok]

Great, a constitutional convention with the screwed up wizards that we have in politics now would be a disaster of titanic proportions. Bush needs to enforce the law that ALREADY exists but he is unwilling to do.

[Reagan Man]

Securing the borders and enforcing the IRCA of 1986 will get the job done. HR 3347 can make it happen. Sadly, the Senate is being totally unresponsive to American public opinion. Time to turn up the heat.

[BigSkyFreeper]

What you get when, out of two parties, one is radical and the other is weak.

Disagree. They've both shown themselves to be weak. Otherwise we wouldn't be faced with half-heartedness and saving-face measures on the part of both sides. They haven't even begun to tackle the issue. What they have done is confused it even further.

[brityank]

No.

There is nothing wrong with the existing constitution. There is something wrong with the existing government. Enforce the constitution -- all of it.

No anchor babies. If the parents are not 'subject to the jurisdiction of these United States' their offspring are not entitled to citizenship. Illegal aliens cannot be drafted; legal immigrants can be.

Fence the borders.

Pitchfork Congress.

[rodeocowboy]

"Pat Buchanan ran on that platform in 1996 and got nary a blip."

Just for the record, I voted for Pat in his primary back in '96 (the first primary I could legally vote in as a 19 year old). Then the rest of you voted for Dole of all people who got his a$$ handed to him by Billy Clinton.

[Reagan Man]

oops correction: HR 4437

[Jim Robinson]

"The founders forgot to put in an accountability clause, it seems."

Well, they did. They're called elections. Also, impeachments, expulsions, etc. I don't think they expected lifetime positions for elected officials.

[La Enchiladita]

H.R. 4437

;^)

[pissant]

And Buchanan got his ass handed to him by Dole. Which is worse?

[detsaoT]

In my haste, I forgot a couple of things:

* For the most part, the Commonwealth of Virginia is extremely representative of my interests. The lack of "big cities" goes a long way towards keeping it that way, too.

* Remember: The Senate is composed of people who are elected by ("THE POPULATION OF THE STATE" DIVIDED BY 2). Your chances of unseating Senators are NEXT TO NIL.

[PerConPat]

Beware calling a ConCon.

Ditto. The Federal Government, as pointed out by numerous posters, will not enforce existing law. So, a ConCon will accomplish nothing and would likely endanger rights- i.e. the Second Amendment, which very well could be instrumental in correcting the illegal immigration problem.

Either we win at the ballot box or we go to the streets to save our families and property. I pray that there is enough sense remaining in this nation to result in the former.

[EternalVigilance]

There is nothing wrong with the existing constitution.

I would change the Sixteenth and Seventeenth Amendments and a few other things, given the opportunity.

By amendment, though.

[La Enchiladita]

Sorry, I just saw your correction.

[ARA]

What does this do to HR4437? This wasn't HR 4437 was it... >

C

[Do not dub me shapka broham]

Good suggestion.

That's one of the benefits of living in a state that enacted electoral reforms during the height of the Progressive movement.

People shouldn't be discouraged by the robed tyrants that thwarted the implementation of Prop. 187.

One of the reasons that's its reached this crisis point is because American citizens were disheartened by the fact that their concerns were being flouted.

They sat back and accepted this untenable situation, instead of fighting back.

[Route66]

In my opinion, taking the road to a constitutional amendment would be long, arduous, and risky. Frankly, I don't think we have the time. The stream across the border has grown from a steady trickle to a raging flood in just a few years. Our communities are changing so rapidly that many of us hardly recognize them.

Part of the reason our resident illegal aliens are so feared is that they and those who hire them and use them for their political purposes are not viewed as individuals but as a large block. Their growing numbers and a perceived cohesion among them gives them undue power over our elected officials.

Perhaps we just need to get as well organized as those who are putting pressure on our governments to leave the borders open. Though most of us do not tend to be the kind who take to the streets, I doubt anything less than the silent majority finding its voice (and finding it in a big way) will have any effect on this issue.

I would like to see one national organization through which we can focus our will and our numbers. We need our own lobby, tens of millions of Americans strong, that is formidable enough to make our representatives fear us more than them. Time is running out and we need to lock arms to get our power back.

[Reagan Man]

No problemo.

[stainlessbanner]

Perhaps a Border State Convention should be called to address the issue. Delegates from various states could be appointed to represent their respective states. The agenda would be limited to the issue of illegal immigration: problems and solutions. This might get the discussion going and get the states (ie. the people) moving in the same direction.

[Modok]

You can pitchfork congress, but you also better find someone to secure the borders also. That's the job that Bush won't do and the oval office is where the problem is on this issue