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

[Jim Robinson]

You forgot the tar and feathers. LOL

[Congressman Billybob]

Several folks asked for my response to the essay on the Convention method of proposing amendments to the Constitution. It is mostly correct, but on some points it is badly out of date and incorrect.

When Congress determined in 1992 that the 27th Amendment, written by James Madison as part of the Bill of Rights, was now ratified and part of the Constitution, it also regularized the amendment proposal process. Only ratifications of amendments, or calls for a Constitutional Convention, that are "contemporaneous," meaning within a seven-year window, would count as valid.

The essay assumes that any such Convention would be a general one, at which the Delegates could propose whatever amendments they wanted to. This ignores the fact that the States control such a Convention. If the States call for a Convention limited to a particular subject, then Congress determines if 2/3rds of the States have also called on that subject. If so, Congress calls the Convention dedicated to that subject, and can refuse to submit for ratification anything which goes outside the legitimate subject matter of the Convention.

For decades now, some tin-foil hat folks have been using the lie that any Convention must be a general Convention to raise money from people fool enough to believe that. It is false, and I have now fought that false belief in hearings before committees of 26 state legislatures.

The fact that the same false belief has cropped up in this essay is unfortunate. If the subject is still live after the election, and I have more time, I'll join in this discussion again.

Congressman Billybob

Latest article: "2nd Report on the Campaign for the NC 11th District"

[Vicomte13]

"After all, entire nations are paralyzed by parties which represent a mere 30-40% plurality of the nation. Is that what we really want? Or do we want for a party to be formed which will eventually replace one of the two existing parties,"

Who is "we"?
I think what Jim Robinson wants is for immigration to be addressed square on, and the border closed to illegal immigration.
Some FReepers want the Kelo decision thrown out and private property protected.
Others want abortion and euthanasia outlawed.
Still others want liberalized gun laws.
There is a strong contingent that wants the abolition of the income tax in favor of other forms of taxation.
I PERSONALLY agree with perhaps a third of that platform.

But neither the Republican nor the Democratic parties agree with more than a sliver of it. Republicans talk a good game, but do nothing substantial. Ever.

So, what I'd most suppose is that "we" want the issues actually ADDRESSED, and the problems FIXED. Now, if that could be done by just sounding the alarm, I think that Mr. Robinson and most others would do it that way.
But it can't be.
If it could be done by just forming a PAC and agitating, that might be a step. But those PACs already exist, and they haven't moved the football at all on any of those treasured issues.
If it can be done by just THREATENING to set up a third party, and going through the gestures - if that would provoke the Republicans to come to their senses - well, then I suspect that most people would do that. But I suspect that the Republicans will unleash the investigatory and regulatory power of government on anyone who seriously threatens their political dominance.
Which means that threatening politics doesn't work. You have to DO it.

Now, I would not get into a game except to win. I'd have a long term goal of replacing one of the parties. But along the way, a new party would pick up strength and become something of a power broker. And that is fine. There is no reason to eschew the use of power along the way to majority. Because, remember, the purpose is to get the policies enacted, and you wouldn't have gone to all of the headaches, bother and expense to actually form a party, run candidates and rule if the existing parties and officeholders had listened to your reasonable requests in the first place.

I think the answer is that once you say you are going to launch, you set up and launch NO MATTER WHAT the other parties say or do. And you strive to win politically, but you never forget that your PURPOSE is to get the policies in place, and if you can do that through power sharing, that's fine. It's not about the power but the policies. Unfortunately, the stubbornness of existing politicians forces you to drive them before you, but that's because they chose to resist you instead of doing the sensible thing.

[Congressman Billybob]

See my brief answer, earlier in this thread and addressed to Jim Robinson and "All."

John / Billybob

[processing please hold]

A)Increased taxes to enforce the laws on every level -- local, state and fed.

They're taking our money hand over fist now to support, feed, clothe, house, and provide them medical care . I'd rather bleed like a stuck pig once and get it over with than to be slowly sucked dry, which is what they are doing now.

B)A new level of government intrusion into all businesses, particularly small businesses to check for undocumented workers. This could extend to home searches if there were "probable cause" of undocumented workers working as domestics.

I say, let the games begin. Fine employers who hire illegals out the ying yang. Ya gotta hit them in the wallet to get there attention.

Of course, some right here on FR knowingly hire illegal aliens.

[durasell]

Is your opinion widely shared by friends and those on FR?

[p23185]

* Declare illegal immigrants as "trespassers" and arrest them when they congregate

They already trespass on private property and when I call the police they respond by saying have they committed any crime, and I explain I would like 50 guys shooed away from the corner and they laugh and proceed to tell me I am crazy - why should they do anything about hard working people just looking for work. An hour later they are out there picking up prostitutes and their johns. I fail to see the difference, but the Phoenix Police Chief certainly has his priorities straight! /sarcasm

[flutters]

I found a news source for that if you would like to post it as a separate thread:

http://www.michnews.com/artman/publish/article_12259.shtml
National Day of Protest: A day without Americans April 17, 2006!
By D.A. King
MichNews.com
Mar 26, 2006

[Publius]

Thank you for helping me find the key error about the single subject situation. I fixed it by adding one paragraph, but I needed to further clarify what you had told me a month ago (or so.)

This essay probably needs another iteration.

[Herford Turley]

Now none of this secession talk, ST.

:-)

[Ichneumon]

Once a constitutional convention is, well, convened, the entire constitution is subject to change. That is a BAD idea. Think of the potential for the left: delete the 2nd, delete parts of the 1st; add express right to abortion; ERA; gay marriage; etc. BAD idea.

That's my take on it as well.

[durasell]

Aw, c'mon, roll the dice with the Constitution. It could get interesting. There might be fist fights.

[Congressman Billybob]

Your assumption that there are "no limits" on a Constitutional Convention is false and contrary to the states' powers under Article V of the Constitution. If the states CHOOSE to call for a general Convention with no limits, then that is what they will get. But not since 1789 has even a single state called for such a Convention.

To the contrary, the hundreds of state calls passed since then have ALL been restricted to specific subjects, and never have 2/3rds of the states agreed on a single subject. If your assumption were correct, such a general Convention would have occurred back in the 1980s, when there were 40 states on record as calling for a Convention -- but on a wide variety of non-matching subjects.

You're buying a tin-foil, fund-raising argument. The power on this issue belongs to the states. And if they want to use just part of their power, to call for a Convention limited to immigration, for instance, they have every right to do exactly that.

Congressman Billybob

Latest article: "2nd Report on the Campaign for the NC 11th Distrrict"

[Petronski]

You know, when I was typing that, I meant "explicit" or "expressed" right to abortion, but I think my slip ("express") is pretty accurate too.

[judicial meanz]

Thanks!

[Eastbound]

"Can 'we the people' come together as a plaintiff . . . "

I was just reading about that. Not sure if this answers your question:

http://www.abanet.org/publiced/impeach2.html

[durasell]

The new constitution could get corporate sponsorship. Ya know, class it up with company logos around the borders.

[Petronski]

I appreciate that clarification. I wonder if the 38 states would be wise enough to properly limit a convention.

[Jim Robinson]

We'd be proposing a constitutional amendment, not a new constitution.

[Petronski]

Ach! 38 states is 3/4ths.


I mean 34 states.