Convention of States - A Handbook for Legislators and Citizens

conventionofstates.com ^ | Michael Farris et. al.

[John Valentine]

There are two methods to propose amendments to the Constitution. Congress is in a perpetual “convention” with the power to propose amendments to the Constitution. The reality, however, is that Congress will never propose an amendment that reduces the power of Washington.

That is why the Founders developed a second method to propose amendments.

The Founders knew the federal government might one day become drunk with the abuses of power. The most important check to this power is the Article V provision that gives the states the ability to call a convention for the purpose of proposing amendments to the Constitution.

By calling a Convention of the states, we can stop the federal spending and debt spree, the power grabs of the federal courts, and other misuses of federal power. The current situation is precisely what the Founders feared, and they gave us a solution we have a moral duty to use. Thirty-four state legislatures can propose a return to liberty by passing resolutions containing an application for a Convention of the States. Then the states can hold a convention where amendments can be proposed and debated. Ultimately, amendments that are approved in such a convention can be sent to the 50 state legislatures for ratification. Congress has no ability to stop such a process. The Founders made sure of that.

We are approaching a crossroads. One path leads to the escalating power of an irresponsible centralized government, ultimately resulting in the financial ruin of generations of Americans. The other path leads to the restoration of liberty and an American renaissance.

Which will we choose?

[John Valentine]

Posted for those interested in finding a practical way to get directly involved.

[Jacquerie]

Michael P. Farris of Citizens for Self-Governance was on FNN a few days after the release of Mark's book.

He promoted their organization and website as a vehicle to press our state legislators for Article V action.

I filled out the usual information and so forth at the website, whose address I no longer recall, because they never communicated back to me.

Hopefully that was just a glitch and they are up and running.

[John Valentine]

I did the same, also waiting for a reply. Meanwhile, I am soloing. But I think I could be more effective as part of an organization.

[Smokin' Joe]

If this is a Constitutional Convention by another name, it is a dangerous undertaking, far too easy to hijack, and could lead to fundamental changes of the wrong type.

So, rather than go completely nutso against it (yet) I ask if that is what this is.

[John Valentine]

So, rather than go completely nutso against it (yet) I ask if that is what this is.

In a nutshell, NO.

Absolutely not.

Rather than let your imagination get the better of you, I suggest you read the Handbook, it's all set out.

[Smokin' Joe]

Thanks, I will.

[Kozak]

No no no. Once you call a constitutional convention it’s ALL on the table.
We will end up with a monstrosity of a Soviet or EU constitution if we give the left half a chance.

[John Valentine]

On the subject of an Amendment Convention or Convention of the States being “hijacked,” I think this is, frankly, a VERY remote possibility, so remote in fact that I consider it a virtual impossibility. It’s just not the way the process is set up.

Far more likely in my opinion is the possibility of nothing whatever actually resulting from the effort, due to fractiousness, divergent goals, etc. Success will depend on sustained focus and sustained single minded effort.

Too bad for the country if this fails, because it will take decades more of decline and erosion of liberty before the people will be so fed up that the shackles of oppression will be cast off via Option “B”, and it will not be a peaceful process.

I’ll be long gone by then, but I fear for my children and grandchildren. Far better that THIS generation fix this mess now; after all we have been complicit in its making. We should have been more vigilant all along.

[nathanbedford]

There is no easy answer to your inquiry which is a legitimate one.

It is true to say that the federal Congress sits in a daily constitutional convention because it can pose amendments which the states would then either ratify or reject, in a procedure identical to the ratification or rejection of amendments proposed by the states in a convention of states according to the choice of Congress as to whether state legislatures or state conventions should ratify.

On the other hand, there is a great dispute about whether the convention, once constituted and conducted, may proceed according to its own lights or may it be restricted other by legislation emanating from Congress, or by restrictions placed on it by the states. Similarly, may the states impose limitations on the independence of delegates and control how they vote?

The answers to these questions determine whether or not the convention is free to set its own rules respecting quorums and, for example, whether votes should be taken on a state-by-state basis or on a individual delegates basis. The latter would suggest control by the big blue states and the former give the red states a much better chance. Who makes this decision, the Congress which "calls" the convention, the states which sends delegates, or the convention itself? The Constitution does not speak. There is, however, historical precedent for the ratification process and there are dicta from the Supreme Court.

In addition to all of this there is the question of the impact of one man one vote decisions of the Supreme Court and that might also affect how a convention votes.

Fortunately, we have a correspondent at FreeRepublic, Publius, who is very knowledgeable on these matters and has provided citations which are very valuable. I expect he will contribute to this thread as well.

It is true that whatever amendments emerge from a convention of the states, 34 states must propose and 38 states must ratify and it is difficult to conceive how that would be a "runaway" convention or a runaway amendment process. However, it is correct to observe that a convention might have more or less scope to propose amendments according to how the questions raised above are resolved.

[Jacquerie]

As odd as it sounds, there is no provision in the constitution for a “let's start over” constitutional convention.

[John Valentine]

No no no. Once you call a constitutional convention it’s ALL on the table.

No it isn't.

First, no one is calling for a "Constitutional Convention". It is a "Convention of the States," or more precisely a "Convention for Proposing Amendments".

When you say that at such a convention everything is "on the table," you have it 100% ass-backwards. NOTHING is on the table beyond the specific subject proposed by the States making application. THAT'S how the process works.

I suggest you educate yourself more completely on the subject before spreading more misinformation. I don't care where you might have picked it up, it's wrong.

[Kozak]

You go to the Obama school of Constitutional law?

” Second, the Constitution might be amended by a Convention called for this purpose by two-thirds of the state legislatures, if the Convention’s proposed amendments are later ratified by three-fourths of the state legislatures”

Once convened, the convention can essentially consider ANYTHING. They are not constrained to specific amendments.

[John Valentine]

While there has never been a convention of the states convened, so these questions and concerns are legitimate.

I welcome any comments or clarifications that anyone can post.

Lets clear up a few things. The States can and indeed MUST inform and instruct their delegations, and voting at any such convention will be on a State by State basis unless the several States agree otherwise by a State by State vote at the Convention.

The matters under debate and decision MUST remain within the ambit of the Convention as called.

All the Congress gets to do is to set the venue and date. Congress has no authority whatever to place any restrictions on the Convention.

The Convention is the creature of the States, solely, and the States not only have the right, but they have the duty to set the subject matter of the Convention. There must be a minimum of 34 States making Application for a Convention on precisely the same subject matter. 34 different applications on different subject matter will not aggregate and no Convention will be called by Congress.

The delegates must be chosen carefully by the State legislatures, and of course they will each have an individual vote but only within their State delegation. While this is not made explicit within the Constitution this is the precedent and the clear expectation of the Founders.

There is NO issue of “one man one vote”. This is “one State one vote”. The reasons why this must be so are historical, logical and practical.

First, there is no restriction on the States as to the makeup of their delegations. They could range from a single individual to dozens. And this is as it should be.

Second, the Constitution was adopted by the STATES, not by individuals. It is the States, not individuals that get to amend it. This too, is as it should be.

And as a practical matter, may I ask just who it might be who would would have the power to dictate that votes should be aggregated nationwide? I will offer my answer to this question: there is no individual or body with the power to so instruct the Convention.

ONLY the several States can instruct their delegations and I find that I cannot imagine that the several States would consent to such an aggregation.

Let’s keep this discussion going.

[John Valentine]

I went to the University of San Francisco School of Law, as a matter of fact.

And you are wrong. Persistently adhering to a factual untruth does not add to your credibility on the matter. It just makes you look uninformed.

Free Republic is a place where it is possible to learn a lot, but not if you are unable to realize that what you think is true may not be. This is the position you find yourself in. I suggest that you listen to those better informed than yourself.

[John Valentine]

From the Handbook:

Opponents of the Convention of the States process often argue that such a convention could result in a runaway convention that would radically rewrite our Constitution.

We respectfully suggest one proper way to analyze these competing claims: Which scenario is more likely to actually happen?

The most common objection to an Article V convention envisions a doomsday scenario in which delegates disregard the original issue, rewrite the Constitution, and change the entire American system of government. Here are the facts:

1. There have been over 400 applications from state legislatures for an Article V convention in the history of the Republic. No such convention has ever been called because there has never been an application from two-thirds of the states for a single subject. This establishes a clear, strong legislative single-subject precedent that would almost certainly be declared binding in the event of a court challenge.

2. In prior Article V litigation it was established that improper changes to the process can be legally challenged by state legislators. This case also held that Congress acted unconstitutionally when it changed the rules of the process in midstream. See, Idaho v. Freeman, 529 F.Supp. 1107 (D.C. Idaho 1981) (vacated on the ground of mootness.) CSG’s Senior Fellow for Constitutional Studies, Michael Farris, was lead counsel for Washington state legislators in that litigation—the last major Article V case in U.S. history.

3. Most importantly, ratification of any proposed amendment requires the approval of 38 states. It only takes 13 states to vote “no” to defeat any proposed amendment, and the chances of 38 state legislatures approving a rogue amendment are effectively zero.

4. Finally, most opponents of the Convention of the States make the historically false allegation that our Constitution was adopted as the result of an “illegal runaway convention.” Such an argument was invented by the enemies of the Constitution. (See the full article in the Appendix: “Was the Constitution Illegally Adopted?”). It defies logic to declare oneself a “defender” of the Constitution while arguing at the same time that it was illegally adopted.

There a multiple lines of defense against a state attempting to pass an amendment that departs from the original subject: (1) A majority of states at the Convention would almost certainly vote such a proposal to be out of order; (2) If such an amendment was proposed, a proper legal challenge would certainly be filed and has a good likelihood of success; (3) It is political certainty that at least 13 states would defeat any such proposed amendment; (4) It is an historical fallacy to argue that we have an established precedent of Conventions changing the rules illegally.

[nathanbedford]

John,

Please have a look at the accompanying American Bar Association report and you will become acquainted with some of the issues which I raised in my reply and perhaps discover that the answers are not quite as obvious as they at first seem.

[Repeal The 17th]

bookmark to read later

[John Valentine]

I am familiar with that ABA Report and with the circumstances which led to its creation, and as a result, I do not consider it authoritative.

[nathanbedford]

The American Bar Association has issued reports in the past on other subjects which have proved to have been "authoritative." There is a previous thread in which some of us engaged in colloquy in which it was observed that the American Bar Association would naturally write a report in defense of the establishment. This bias was well understood by those of us who contributed to that thread.

I point out that the ABA report offers citations which include, the United States Constitution, the Federalist papers, various state constitutions, Supreme Court opinions, history of previous ratifications, history of previous applications for conventions, and more.

I did not recommend the ABA report to you as the definitive authority, I recommended the report to you because it raises issues which you in your reply dismissed citing no authority whatsoever except for the article which is the subject matter of this thread.

Intellectual honesty compels us to advise the readers of this thread of a very influential point of view which is available to them at the click of their mouse.

[John Valentine]

Sure, I agree that one has to look at issues open-mindedly.

And I said I didn’t consider the ABA report authoritative; I didn’t say it was entirely erroneous or that it was not instructive.

But theABA report errs egregiously on the matter of apportionment. There they have the horse’s ass placed most awkwardly in front of its head.

The ABA comes close to admitting their error when they state “...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.”

Archaic? Sure, just like the Constitution itself. The ABA seeks to make permanent every usurpation of State sovereignty the past century. I for one do not accept this reasoning.

Worse yet, they go on to state: “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.”

Here the ABA makes explicit their position that the States are mere vassals of the Leviathan. No justification? may I again mention the horse mentioned above.

The entire purpose of the Convention is to correct the very imbalance embraced by the ABA. To hell with them and the horse they rode in on.

I said this before and i will say it again: there is no individual or body with the power or the authority to compel a Convention of the States to aggregate the delegate votes on any wider basis than State by State except for the States themselves, and that vote if it is ever held, will be on a State by State basis.

My point of view, but I consider it well based in history logic and practicality.