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Press Release April 30, 2013


CHARLES KACPROWICZ 

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   Charles Kacprowicz

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IMPORTANT HISTORICAL ANALYSIS OF STATE LEGISLATURE AUTHORITY UNDER ARTICLE V

 

 

Discussion Article V and Article 1, Section 10

 

The State Legislatures alone have the authority to “limit” the agenda and authority of a Federal Amendment Convention.  The Constitution does not authorize "Open" Constitutional Conventions.  The State Legislatures alone can Call for a “Single Issue” Convention to propose Amendments .  When the States Call on Congress to convene a Single Issue Amendment Convention and simultaneously enter into separate and independent Delegate Resolutions that governs the conduct of their delegates at a convened Convention, the purpose, terms, conditions, duration and text for the Amendment are predetermined.  Only 26 States are needed to provide a safe, predictable and successful outcome at the Convention.  The Delegates sent by State Legislatures to a Convention are Ambassadors of their States - they are not independent agents as some have foolishly argued. 

 

Under Article V, State Legislatures can also enter into Interstate Agreements for the purpose of amending the Constitution.  Article 1, Section 10 is subjugated to Article V, otherwise the sovereign authority of the States would be meaningless because exercising such authority would be conditional upon the whims of Congress, the Courts and Executive Branch.  In order to avoid relentless attacks on States rights and undermine Article V if Interstate Agreements were adopted, Citizen Initiatives is advancing Delegate Resolutions. 

 

If the Founders had omitted the option for the States to Call for Conventions in Article V, it is very doubtful that the new Constitution would have been ratified by the States.  Why would the Founders allow the States to Call for a Convention for the purpose of proposing Amendments only if Congress and the Courts agree to convene a Convention? 

 

The Constitution reserves to State Legislatures the right to "Call" for Federal Amendment Conventions for the purpose of proposing Amendments when Congress, the Courts and/or the Executive Branch refuse to address an egregious wrong suffered by the people. 

Article V  -  United States Constitution  -

"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; . . . "

The Constitution guarantees to every State a Republican for of Government which gives each State equal standing when Calling for a Convention. 

Article IV, Section 4  - United States Constitution  -

The United States shall guarantee to every State in this Union a Republican Form of Government, . . . ”

State Legislatures must understand that they presently have the sovereign authority to be the final arbiters in all Constitutional matters.  If they allow Congress, or the Courts, or the Executive Branch (Federal or State) to define their sovereignty, they will be abdicating their authority forever.  They will not get it back.  To protect and re-empower the Constitution so that it conforms more closely to original intent of the Founders State legislatures must take up their Constitutional authority and duty by advancing selected Single Issue Amendment Conventions. 

 

The States can reclaim the economic and moral high ground in America.  We can reclaim our economy and Constitutional heritage through "Single Issue" Amendment Conventions one grievance at a time. 

 

FURTHER ANALYSIS

"Interstate Agreements (prohibitions in Article I, 10) and "Delegate Resolutions"

INTERSTATE AGREEMENTS

Article I, Section 10 prohibits the States from entering into interstate compacts (agreements) . 

 

The Founders, when they inserted Article V into the Constitution authorizing State Legislatures to Call on Congress to convene a Federal Amendment Convention for the purpose of proposing Amendments, intended to give to the States an "Absolute Right" to Call for a Convention, without the consent of Congress or the Courts, or Executive Branch.  They were representing their State Legislatures at the Constitutional Convention and intended to preserve for their States the same sovereignty the State Legislatures had in the Articles of Confederation with the exception that a unanimous vote by the Legislatures to change the Articles would be changed to a 3/4's vote in the new Constitution.  The States never relinquished their sovereignty when ratifying the new Constitution.  They certainly never intended to allow their authority to be defined by Congress, or the Courts or the Executive Branch. 

 

Article I, Section 10 was to be superseded by Article V if and when State Legislatures decided to amend the Constitution.  To conclude otherwise would prevent the States from changing the prohibitions in Article I, 10 which in turn would make a mockery of their authority in Article V for proposing Amendments. 

 

Interstate Agreements are the preferred way to Call for a Single Issue Convention and to define the duties and authority of delegates at a Convention.  After 26 Calling States enter into an Interstate Agreement the outcome at the Convention would be assured and successful. 

 

DELEGATE RESOLUTIONS

 

Delegate Resolutions are resolutions passed by State Legislatures to define the duties and authority of the delegates that the Legislature sends to a convened Convention.  Each State Legislature enacts its own Delegate Resolution independent of all other States.  The terms, conditions and text of the proposed Amendment are identical for each Delegate Resolution, but the instructions in the resolution are to a State Legislature's delegates only.   In this way there is no compact between the States and no possible violation of Article I, Section 10. 

 

Each "Single Issue" Amendment Convention has its own unique Delegate Resolution.  None of the resolutions are part of an Interstate Agreement.  By having similar wording and the identical text for the proposed Amendment, the States can control the deliberations at a Convention with only 26 States.  Delegates at the Convention would have only one decision to make: "Should the proposed Amendment be returned to State Legislatures for ratification."  The delegates would have no authority to consider any other matter and they would have no authority to alter the Constitution in any way beyond the proposed Amendment.  

The delegates at the Constitutional Convention inserted Article V and the option for the State Legislatures to Call for a Convention because they wanted to check the power of Congress and the Courts when an egregious wrong suffered by the people is not addressed by the government.  It would be irrational and illogical to think that the Convention option for the States was inserted by the Founders with the understanding that any Call by the States would first require approval by Congress or the Courts.  Preposterous!

 

Article I, Section 10 is superseded by Article V and should not restrict State authority when Calling for a Convention to propose Amendments.  It is important to remember that the Colonies, when they agreed to write a new Constitution, knew that they already had veto power when altering the Articles of Confederation.  Article V was their way to carry that authority over into the Constitution and instead of requiring a unanimous vote to change the Articles, the new Constitution would require only three quarters of the States to ratify Amendments to the Constitution.  The Founders never intended to abdicate their State's (Colony's) authority (sovereignty) by allowing Congress and the Courts to veto or alter their Calls for a Convention.  To think otherwise means that State Legislatures would have to sheepishly approach Congress when Calling for a Convention and only if Congress or the Courts agreed with their Call would the States be able to have a Convention.  If prior Congressional approval or judicial consent is needed, then  Congress and the Courts hold the ultimate authority, not the States, when Calling for a Convention. The States, in effect, would be impotent to address any issue through a Convention without Congressional approval or a favorable decision by the Supreme Court. If the States allow for this convoluted flawed Constitutional thinking to stand, then they will have abdicated their authority and sovereignty under Article V. 

 


Article I, Section 10  -  United States Constitution

"No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payments of Debts; pass any Bill of Attainder, ex post factor Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

 

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspections Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

 

No State shall, without the Consent of Congress, lay any Duty or Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."  

 

The following excerpt is taken from the Marquette Law Review, Vol. 36, Winter, 1952-53, No. 3:

One writer, in considering the distinction between a treaty and a compact, makes the following observation:  

"The distinction which the framers of the Constitution intended to draw between agreements unconditionally prohibited and those permitted with the consent of Congress is not apparent from the language of the Constitution itself. Nor is aid to be derived from literature contemporary with the Constitutional Convention. There was little or no discussion of these two clauses while the Constitution was in making, and the question has never been judicially determined. Story maintained that the terms 'treaty, alliance, and confederation' applied to treaties of a political character, such as 'treaties of alliance for purposes of peace and war; and treaties of confederation, in which the parties are leagued for mutual government, political cooperation, and the exercise of political sovereignty; and treaties of cession of sovereignty, or conferring internal political jurisdiction or external political dependence, or general commercial privileges'. The terms 'agreement' and 'compact' referred, in his opinion, to 'private rights of sovereignty; such as questions of boundary; interests in land situated in the territory of each other; and other internal regulations for the mutual comfort and convenience of states bordering on each other.'"

 

41304 U.S. 92, 104 (1938).  4231 YALE L. J. 635 (1922).

Article V Proposing Amendments Book

 

 

 

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