For a .pdf
copy of Tools with Teeth go to:
http://citizeninitiatives.org/Tools_with_Teeth.pdf
TOOLS with TEETH
for State Legislatures
Article V / Bi-Partisan
"Sovereignty and States Rights Amendment Convention"
and "Component Single Issue Amendments"
January 22, 2014 –
The following Article is the official public
policy statement of Convention of States and Citizens for Self Governance,
author Michael Farris. It can be downloaded at
http://action.conventionofstates.com/.
The formatting of Convention of States’ statement has been altered, but
the text has not.
Comments by Charles Kacprowicz, National Director
of Citizen Initiatives are inserted in red with the preface “CK’s
Comment:”. Citizen Initiatives is advancing the Article V Sovereignty
and States Rights Amendment Convention and component Single Issue
Amendment Conventions separate from Convention of States, et al.
Comments also include unrelated topics such as
Interstate Agreements (Compacts) between the States, Congressional approval
for Article V Applications, and the need for Delegate Resolutions. See
section 40 below.
The purpose of this edited Article is to identify
points of agreement between Convention of States, et al and Citizen
Initiatives and to clarify differences.
_______________________________________________
1)
Convention of States Policy Statement . . .
Why the States Need To Use Their
Constitutional Power to Rein in Abuses of Power by Washington DC The Problem
Washington DC loves its own power and will never
relinquish its power. In fact, all branches of the government in Washington DC
are committed to the escalating growth of a centralized national government.
This truth does not fundamentally change regardless of who is elected to the
Congress or the White House.
The addiction to power is fueled by a
fundamental reliance on growth in spending, increasing regulation of a
broadening swath of American life, and a deadly reliance on debt.
If the national debt was calculated by
the normal rules of accounting, where accrued debt was included (e.g., vested
social security benefits), the national debt would be well over $100 trillion
and may be as high as $200 trillion.
CK’s Comment: Agree.
_______________________________________________
2)
Convention of States Policy Statement . . .
Washington DC buys votes and power with
money. It uses its power to extract money from both today and tomorrow. This
nation will deny any semblance of freedom to our children and grandchildren.
There will be taxes imposed on them for spending they never approved or from
which they received any direct benefit. This is taxation without representation
in a multi-generational form that can only be described as tyrannical.
CK’s Comment: Agree.
_______________________________________________
3)
Convention of States Policy Statement . . .
The Need for a
Structural Solution
The most important rule in any
organization is the rule about who makes the rules.
We have allowed Washington DC to be the
sole possessor of the power of ultimate rulemaking. As a consequence, the
states are becoming, on an increasing basis, the mere implementers of federal
policy decisions. Any thought that we are following true federalism is a cruel
mockery of the values of those who created our Constitutional federal republic.
We must change the structure of power.
No one seriously believes that electing the right member to the House or Senate,
or the right occupant of the White House, will fix the structural problems or
result in the decentralization of the processes of power.
While changes in personnel through
elections can serve good and useful purposes, the only path for a meaningful
solution is a structural change which reassigns the authority to make policy
decisions for this nation.
In the wake of the 2012 elections,
there was a good deal of buzz around the ideas of state nullification and even
some hinting at secession. While we can appreciate the frustration with
Washington DC that prompts such thoughts, we need to recognize them for what
they are. These are extra-constitutional solutions that are revolutionary in
character. And while we have come to overuse the term “revolutionary” to
describe major innovations, these revolutions are of the same sort as the
original American Revolution. Ultimate this path leads to war. And no sensible
person wants war when there are viable constitutional and peaceable alternatives
available.
CK’s comment: “Who makes the rules” is
the key question. Citizen Initiatives is working to prevent State Legislatures
from abdicating their sovereign authority under Article V. Delegate Resolutions
that define the duties of delegates at a Convention and which include a
pre-approved text for the Amendment assures that State Legislatures remain
defenders of the Constitution and the last arbiters in all Constitutional
matters. Under Article V it they could be said that they are the fourth Branch
of federal government.
We agree with the warning that
“nullification” and “secession” can lead to violence and even Civil War. For a
State Legislature to declare its displeasure with Congress regarding a specific
Statute and then “request” Congress to change the law in favor of its interest
is not nullification. Nullification is by the very term defiance by a State in
opposition to the federal government’s mandate.
Nullification can be accomplished,
however, without violence through the Sovereignty and States Rights Amendment
and its Countermand provision. When 60% of State Legislatures
Countermand a law or regulatory ruling decreed by the Federal Government,
then it is automatically disallowed and rescinded. It won’t matter what branch
of government issued the mandate. State Legislatures will be seen as partners
in governance, not subjects to federal power. The Amendment also confirms 10th
Amendment authority for the States guaranteed in the Constitution. The States
will also be able to prosecute intentional violators of the provisions of the
Amendment in the absence of federal prosecution.
_______________________________________________
4)
Convention of States Policy Statement . . .
There is a constitutional process that gives the
states the unilateral power to change the structure of American government. It
is a process given to us by the Founding Fathers for the very situation we face
today. When the national government becomes drunk with abuses of power, the
states were given the authority to reorganize the government in a manner that
preserves the Republic and preserves liberty.
CK’s comment: The phrase “change the
structure of American government” has an ominous tone. Article V does not allow
State Legislatures (nor Congress) to usurp the sovereignty of the Constitution.
It simply provides a safe method for the Constitution to be preserved while the
Legislatures address egregious wrongs suffered by the people at a Convention.
When the federal government refuses to respond to petitions by the people, then
State Legislatures can remedy these wrongs though Single Amendment Conventions.
_______________________________________________
5)
Convention of States Policy Statement . . .
We respectfully suggest that not only
do the states have this authority; they also have the responsibility to save
this nation by using their constitutional prerogatives to stop the federal
abuses of power.
Article V &
State Power
Article V
provides:
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….
CK’s Comment: Agree with the following
qualifier: the Legislatures do not have the authority to rewrite the
Constitution, only to amend it under Article V one grievance at a time. See
comment above.
_______________________________________________
6)
Convention of States Policy Statement . . .
There are two groups of elected bodies
that have the power to propose constitutional amendments: Congress and the State
legislatures. Either group may propose a single amendment, groups of amendments,
or an entirely new Constitution. Congress has used its power to propose a group
of amendments—these are called the Bill of Rights. Twelve were proposed. Ten
were initially ratified. The eleventh was ratified in 1992 and became the 27th
Amendment to the Constitution. All other amendments were proposed by Congress as
single amendments. While Congress has the power to propose an entirely new
Constitution at any time, it has never done so.
CK’s comment: Agree up to “proposing
an entirely new Constitution”.
Under Article V Congress cannot propose
a new Constitution. Article V only allows for the proposal of Amendments to the
present Constitution. Congress is powerless to create a new Constitution. If
the State Legislatures wanted to create a new Constitution, they would have to
secede from the Union and Call for a Convention for the purpose of creating a
new government. Neither Congress nor State Legislatures, under Article V, have
the power to abolish the United States Constitution or our present
Constitutional Republic. Both members of Congress and State Legislators have
taken an oath to defend the United States Constitution from foreign and domestic
enemies. To suggest that Article V empowers them to usurp the Constitution’s
authority by proposing a new Constitution is a very dangerous idea and if
unchecked will lead to flawed assumptions that undermine the stability of our
Constitution. If we lose our Constitution we will have nothing with which to
peacefully defend our inalienable rights and limited government.
There is indeed a strong precedent for
Single Issue Amendments to be proposed by Congress in the future. This
historical practice suggests that Legislatures have the same ability. However,
under Article V, State Legislatures are sovereign States and how they use this
authority for proposing and ratifying Amendments is entirely in their
prerogative. The Legislatures do not need historical or legal precedent, nor
the permission of Congress, nor the Courts, nor regulatory agencies, nor Article
V groups to define their sovereign authority, nor how they should Call for and
conduct themselves at a Convention. They alone decide how they will use Article
V - providing of course it is limited to proposing Amendments to our present
Constitution.
If State Legislatures had to first
secure permission from Congress, the Courts, Executive Branch, or regulatory
agencies before they Call for a Convention, then the Article V process would be
utterly worthless to the States. They would just as well secede from the Union
and ratify a new Constitution. The federal government would rule supreme.
See Section 40 below for a discussion
of Article I, 10. The Article prohibits Interstate Agreements without
Congressional approval. Delegates Resolutions are the only method that allows
State Legislatures to safely, predictably and successfully amend the
Constitution under Article V without possible violations of prohibitions in
Article I, 10.
Conclusion, Article V simply allows the
Constitution to be changd one Amendment at a time. Multiple Amendments can be
proposed simultaneously through Congress and Conventions. The check on the
possible abuse of the Amendment process lies in State Legislatures that must
ratify all proposed Amendments.
_______________________________________________
7)
Convention of States Policy Statement . . .
State legislatures also have the power
to propose constitutional amendments through the convention process. Whenever
two-thirds of the states (i.e. 34/50) apply for a Convention for amendments,
Congress has the ministerial (non-discretionary) duty to call such a Convention.
CK’s Comment: Agree.
_______________________________________________
8)
Convention of States, et al . . .
There have been over 400 state legislative
applications for an Article V convention for the purpose of amendments in the
history of the Republic. Yet, a convention for this purpose has never been
called. The reason is simple: there has never been a group of applications for
the same purpose that reaches the required numerical threshold.
CK’s Comment: Agree. In addition,
there has never been an oversight group to facilitate the Applications to assure
that Congress has Constitutionally fulfilled its mandate to convene a Convention
when two thirds of the States complete their Applications on Congress. Citizen
Initiatives intends to facilitate the Amendment process on behalf of State
Legislatures to make certain that Congress does convene the bi-partisan
Sovereignty and States Rights Amendment Convention, or other Single Issue
Amendment Conventions, when 34 States complete Applications. The
Amendment’s provisions include:
1.
Confirmation of
Constitutional, National and State sovereignty.
2.
Confirmation of Amendment
IV privacy protections in an electronic age.
3.
Countermand authority for
the States that can disallow and rescind new and existing laws and regulations
that are onerous to the States.
4.
Enforcement by allowing
the States to prosecute intentional violators of the Amendment in the absence of
federal prosecution.
_______________________________________________
9)
Convention of States, et al . . .
For over 200 years, Congress has
followed a single subject rule. Conventions can only be called when 34 states
apply for a Convention for the same purpose. This is a powerful legislative
precedent that cannot be overstated as to its importance. The meaning of Article
V in this regard has been established by the strongest possible precedent—over
200 years of unbroken practice.
CK’s comment: The 200 year precedent is not controlling.
However, a single subject Convention, as proposed by COS, carries the idea that
delegates alone decide what subjects and content they will deliberate on at the
Convention. COS’ proposed Call includes the following four Subjects:
1.
imposing fiscal restraints on the federal government
2.
limiting its power
3.
restricting its jurisdiction, and
4.
mandating term limits for elected or appointed officials
Each one of these 4 subjects for
delegates to debate at the Convention can have many undefined sub-Subjects.
There could be dozens of sub-Subjects for each Subject. In addition, each of
COS’ proposed Subjects, in today’s political climate, is partisan. Under each
Subject there would be dozens of different definitions offered by the delegates
to define what the issues are, how define specific problems, what the solutions
are and what the text should be for each Subject and sub-Subject. .
Congress could summon 534 delegates to
the COS Convention and the Legislatures could appoint the same number. The
first order of business would have to be how the Convention is to be organized.
Will the delegates agree that each State Delegation is to have one vote as
guaranteed in Article IV, 4. Or will they decide that each delegate has one
vote? California would have 50+ delegates with Montana having no more than 4.
Will Robert’s Rules of Order apply or will they create a new Convention
process? In the absence of pre-defined and pre-approved instructions to the
delegates by the Legislatures, mayhem will be the result. There are forces in
America today that are encouraging the convening of the COS Convention with
intentions to disrupt its proceedings and eventually create Amendments that
would suit their political and ideological interests. Only State Legislatures
through Delegate Resolutions can prevent mayhem at the Convention.
A single Amendment Convention with
Delegate Resolutions that include a pre-approved text of the proposed Amendment
(Sovereignty and States Rights Amendment and component Amendments such
as the Countermand Amendment Convention) will result in a safe, predictable
and successful Convention. Article 1, 10’s prohibitions against Interstate
Agreements will not be violated because the Delegate Resolution is a contract
between State Legislatures and their delegates to the Convention. It is not a
compact between the States. 34 States are still required for the Calls and all
States will decide if the Delegate Resolution will be approved by their
Legislatures. Each Legislature that passes a Delegate Resolution with wording
similar to the other States will be giving instructions to their delegates
only. In the congregate the Legislatures will be defining the duties of their
delegates only at the Convention without violating any prohibition against
Interstate Agreements. Under Article V Delegate Resolutions are a State
Legislature prerogative and do not require the Governor’s signature.
With a pre-approved Delegate
Resolution, which includes the text for the Amendment, State Legislatures
are the sovereign deliberative body, not delegates sent by the Legislatures to a
Convention.
The State Legislatures define their
sovereign authority, no one else. Delegates sent to a Convention are Ambassadors
of their Legislatures, they are not free agents. There are many examples in
both private and government where delegates follow the instructions of the body
that appointed them to the Convention. An example would be Baptist Conventions
where the delegates summoned do not add to or change the agenda at the
Convention. Their role is to decide through their vote whether or not a
particular pre-approved amendment to their organization’s Constitution should be
approved or not. They are Ambassadors representing their local Churches.
Delegates to an Article V Convention are similarly under the authority of their
Legislatures and thereby required to vote on a pre-approved Amendment text with
instructions on how to organize the Convention.
_____________________________________________
10)
Convention of States, et al . . .
We believe that it is
the time for the state legislatures to use this Article V power to propose a
group of specific amendments to rein in the abuses of power by the federal
government.
CK’s comment: Agree, but with
pre-approved Single Amendment Conventions, not “Subject” Amendments to be
defined by delegates at the Convention.
_______________________________________________
11)
Convention of States, et al . . .
Steps in the Process
Here is how it would work:
Thirty-four state
legislatures would pass similarly worded resolutions which call for an “Article
V convention to propose amendments which limit the authority and jurisdiction of
the federal government.”
Congress would have a
non-discretionary duty to call the convention. The call could only name the time
and place for the Convention.
CK’s Comment: Agree, with the
clarification that the Call should be for a Single Amendment Convention defined
in a Delegate Resolution.
Why would State Legislatures want to
surrender their sovereign authority to delegates in order to reach a political
compromise? The ultimate question in Article V Conventions is will Legislatures
abdicate their sovereignty? If they do they will have established a terrible
precedent making it virtually impossible to reclaim for future generations.
_______________________________________________
12)
Convention of States, et al . . .
The convention is a convention of
the states.
CK’s comment: Citizen Initiatives
believes the name “Convention of States” is misleading and carries a reliance on
flawed applications of precedents, history and State Convention experiences.
All Article V Conventions would be better described as Amendment Conventions.
In fact, Article V was inserted into the Constitution to propose Amendments, not
to usurp the authority of the Constitution.
In Citizen Initiatives’ case the
specific title in the Call on Congress for all States would be Sovereignty
and States Rights Amendment Convention and/or component Single Issue
Amendments such as Countermand Amendment Convention.
Of course, it is possible for the Call
for the Amendment Convention to go forward in parallel to COS.
_______________________________________________
13)
Convention of States, et al . . .
This necessarily means that each state has its
own ability to prescribe whatever means it wishes to choose its own delegates.
CK’s Comment: Agree.
_______________________________________________
14)
Convention of States, et al . . .
All voting would be on the one-state, one-vote
rule, just as the original constitutional convention. (And which is the only
possible rule when the members of the convention are the states and not the
delegates).
CK’s comment: Agreed that Article IV,
4 must govern the deliberations at the Convention, but with as many as 534
delegates summoned to the Convention this issue must be decided by the
Legislatures before convening the Convention through a Delegate Resolution.
Otherwise, there will be mayhem at the Convention with politically charged
delegates deciding if one vote per State Delegation will rule or one vote per
delegate. One vote per State delegation regardless of the States’ population or
number of delegates sent to the Convention must be decided by State Legislatures
before the Convention is convened.
_______________________________________________
15)
Convention of States, et al . . .
Only amendments that are germane under the
language of the applications (i.e., they call for limitations on the authority
and jurisdiction of the federal government) may be approved.
CK’s comment: Problem! How will the
Convention decide: 1) which Subjects and sub-Subjects the delegates will address
under COS’ proposal, 2) what the problems are under each Subject and
sub-Subject, 3) what solutions should be offered, 4) what the text of each
proposed Amendment should be, and finally, 5) if the Amendment, as proposed,
should it be sent to the States for Ratification. This scenario would have to
be followed by the delegates for each COS Subject and sub-Subject in their Call
for a Convention. It is doubtful that any Amendment in a politically charged
Convention would be able to forthrightly address the countries troubles.
COS’ “Subjects” are partisan by nature
and as such will create divisions at the Convention. The Sovereignty and
States Rights Amendment and component Countermand Amendment Convention,
et al, on the other hand, is bi-partisan. It allows State Legislatues to
address the nation’s problems through Countermands and State
Enforcement. Political motivations will be minimized. For example, State
sovereignty can be defended by all political parties.
_______________________________________________
16)
Convention of States, et al . . .
A simple majority vote (of states)
is required to propose amendments.
CK’s comment: Agree, but only if the
Convention is organized under Article V, 4. This will not be guaranteed with
delegates at the Convention deciding the matter. Delegate Resolutions will
assure that each State has one vote.
_______________________________________________
17)
Convention of States, et al . . .
Congress would then have the duty to name one of
two methods for ratification of the proposed amendments. They could call for
state-based ratification conventions, or for ratification by the state
legislatures.
CK’s Comment: Agree.
_______________________________________________
18)
Convention of States, et al . . .
When 38 state legislatures (or state conventions)
ratify any or all of the proposed amendments, they become a part of the
Constitution of the United States.
CK’s Comment: Agree.
_______________________________________________
19)
Convention of States, et al . . .
Answering
Common Questions
Can the
Convention be limited to a specific subject?
Yes. We have a 200 year legislative
precedent that says that the single subject (or purpose) rule has been followed
by Congress. The Convention will only be called when 34 states make applications
for a single subject or purpose.
CK’s comment: Disagree. Precedent will
not guarantee that the deliberations at the Convention will be safe, predictable
and successful. 26 or more Delegate Resolutions will.
_______________________________________________
20)
Convention of States, et al . . .
Just like Congress, the Convention must also
follow the single subject rule. We have a judicial precedent which is important
also.
CK’s comment: Disagree. There is no
parallel between Congress and an Article V Convention. There is no “Single
Subject Rule” that delegates are required to follow. Article V Conventions have
a new and different purpose. It is conceivable that under Article V State
Legislatures become the 4th Branch of the federal government. In
fact, they are the final arbiters in all Constitutional matters. With such
authority precedent is not and must not be controlling. These truths reaffirm
the importance of Delegate Resolutions.
An Article V Convention through State
Legislature bypasses Congress, the Courts, Executive Branch and regulatory
agencies. It decides how the federal government is to conduct itself.
Delegates at such a powerful Convention must be bound by contract to their State
Legislatures.
_______________________________________________
21)
Convention of States, et al . . .
In 1978, Congress passed a resolution which
purported to extend the deadline for the ratification of the Equal Rights
Amendment by approximately three-and-a-half years. This attempt to change the
rules in the middle of the Article V process was challenged in court by state
legislatures from Idaho, Washington, and Arizona. The federal district court
in Freeman v. Idaho¸ CITE, held that it was unconstitutional for Congress to
attempt to change the rules in the midst of the Article V process.
CK’s Comment: Agree.
_______________________________________________
22)
Convention of States, et al . . .
It must be remembered that Congress and the
Convention possess equivalent power regarding the basic components of the
amending process. If Congress cannot change the rules of the process when it has
initiated the Article V process, the States (through a convention) are equally
prohibited from changing the process once it has been started. The Supreme Court
vacated the decision on mootness grounds when 38 states failed to ratify even
under the extended deadline. Thus, the precedent is not equivalent to a Supreme
Court decision, but it is a reasonable view of the correct outcome in the
process of litigation. The author of this paper was counsel for the Washington
legislators in that litigation.
CK’s comment: Agree.
_______________________________________________
23)
Convention of States, et al . . .
What are the
safeguards if a Convention attempts to go beyond the applications from the
States?
The ultimate safeguard is this: 34
states applied for the convention for a particular purpose. It would require 38
states to ratify any amendment that would be proposed out of a Convention. It
would only take 13 states to vote “no” on any proposed amendment to defeat it.
The chances of 38 state legislatures approving a rogue amendment are effectively
zero.
Moreover, the Idaho v. Freeman, case
demonstrates that the courts will review a constitutional challenge brought by
state legislators to an abuse of the Article V process. There is every reason to
believe that the rule of Freeman would be followed: any change in midst of the
Article V process is unconstitutional.
CK’s comment: Agree. See comments
above regarding sovereign authority resting in State Legislatures when proposing
and ratifying Amendments through Conventions.
The Supreme Court is the policing
authority that can protect the Amendment process. State Legislatures, however,
control Article V Conventions and ratifications of Amendments which means they
decide what Constitutional mandates the Supreme Court is required to follow.
Ultimately, State Legislatures have final authority in all Constitutional
matters.
_______________________________________________
24)
Convention of States, et al . . .
Why should we trust this process,
after all the original Constitutional Convention was a runaway convention that
abused its mandate to amend the Articles of Confederation?
This attack on the integrity of the
United States Constitution is based on utterly fallacious history. Here are the
relevant facts:
The call for the Constitutional Convention
specified that it was “for the sole and express purpose of revising the Articles
of Confederation and reporting to Congress and the several legislatures such
alterations and provisions therein as shall when agreed to in Congress and
confirmed by the states render the federal constitution adequate to the
exigencies of Government & the preservation of the Union.”
CK’s comment: Agree.
_______________________________________________
25)
Convention of States, et al . . .
Thus, the document contemplated was an adequate
federal constitution.
CK’s comment: Agree.
_______________________________________________
26)
Convention of States, et al . . .
There was no limit on the number of amendments to
the Articles which could be proposed.
CK’s comment: Agree. However, under
Article V the rules have changed. The purpose and methods to amend the
Constitution today were created to protect our Constitutional Republic while
addressing problems facing the nation. Article V no longer allows an Open
Convention (Constitutional Convention) which the Confederation Congress
convened.
_______________________________________________
27)
Convention of States, et al . . .
There was no requirement which prohibited the
Convention from proposing amendments as a complete package rather than as a
series of amendments. Political reality suggested that it was most likely that a
package deal would be forthcoming so that the negotiations and balancing of
interests between the states could be achieved.
CK’s comment: Agree. However, the
State Legislatures, with their ratification, required the new Congress to
immediately send Amendments (today’s Bill of Rights) back to the Legislatures
for ratification that would protect personal liberties and further limit the
power of federal government. The Convention did not initiate the Bill of
Rights, the new Congress did. In fact, the ratifications of the new
Constitution by the Legislatures were conditional upon Congress doing as
directed by the States. If Congress refused then the States could have argued
that the new Constitution was not properly ratified. They could have returned
to governance under the Articles.
_______________________________________________
28)
Convention of States, et al . . .
Some provisions of the Articles of Confederation
were carried forward into the Constitution. Thus, while there were substantial
changes, it was in fact an amendment to the Articles.
CK’s comment: Agree. This is an
excellent observation.
We might want to take it one step
further and conclude when Rhode Island refused to participate in the
deliberations at the Convention they in fact abdicated their authority under the
unanimous vote requirement in the Articles. When the other 12 States moved
forward with the Amendment process, which included writing the Constitution we
have now, they did so determined not to allow one State hold the others
hostage. The problems that needed to be addressed by the Founders included
inflation, taxes, commerce, supplying the Army and others, were so severe that
to ignore them meant the Revolutionary War would have been fought in vain. The
nation would have returned to being a Monarchy. This, of course, was exactly
what George Washington refused to entertain by rejecting a proposal that he be
the first king of the United States.
The most difficult problem for the
delegates at the Constitution Convention was how the States would retain their
sovereignty. Under the Articles of Confederation amendments required a
unanimous vote. The delegates solved this problem by changing the unanimous
vote requirement to three quarters. However, State Legislatures never abdicated
their sovereignty with this change and Article V delegates were never given
independent sovereign authority from their Legislatures.
_______________________________________________
29)
Convention of States, et al . . .
The Constitution Convention did not send the
Constitution to the states to be ratified as is commonly (and falsely) believed.
The Constitution (together with a new proposal
for ratification) was sent to Congress. Thus, the very group—Congress—which
called the Convention into being is the one which received the work product. If
Congress believed that the Convention had abused its authority, it has the
complete authority to reject their work. Instead, Congress exercised its power
under the amending process of the Articles of Confederation to approve both the
new Constitution and the new methodology for ratification. The new methodology
for ratification had two changes. First, the number of states required for
ratification was changed from 13 to 9. Second, the group asked to do the
ratifying was changed from the legislatures to specially-called ratification
conventions in each state.
CK’s comment: Agree.
_______________________________________________
30)
Convention of States, et al . . .
Congress still did not send the Constitution to
the state conventions. It sent the Constitution and the new proposal for
ratification to the state legislatures.
CK’s comment: Agree.
_______________________________________________
31)
Convention of States, et al . . .
Congress asked the state legislatures to approve
the change in the ratification process by calling ratification conventions.
CK’s comment: Agree. However, this is
not a parallel event to an Article V Convention. In fact, the delegates asked
the Confederation Congress to send the proposed Constitution to State
Conventions for ratification probably for political reasons.
_______________________________________________
32)
Convention of States, et al . . .
That is exactly what happened. All 13 state
legislatures called ratification conventions thus approving the new process.
CK’s comment: Agree.
The Constitution was then adopted by 11
state conventions (two more than required). Two states—North Carolina and Rhode
Island—rejected the Constitution itself, but both of these states had approved
the new process and eventually ratified the new Constitution. In fact, our
Constitution was eventually ratified unanimously by 13 States.
_______________________________________________
33)
Convention of States, et al . . .
Thus, we can see that the original process was
not a runaway convention as is often contended by those who argue against the
use of Article V power. This argument is based on false history and an
inconsistent view of the Constitution.
CK’s comment: Agree.
_______________________________________________
34)
Convention of States, et al . . .
Opponents of an Article V convention say that it
is dangerous to place our dearly beloved Constitution (which was illegally
adopted by a runaway convention) into any danger by calling such a convention.
How can the Constitution be dearly loved and illegal at the same time?
CK’s comment: Agree.
_______________________________________________
35)
Convention of States, et al . . .
The reality is that the modern originators of
this runaway convention idea were liberals who wanted to thwart any limitation
on federal power. One of the leading advocates of this theory is former Chief
Justice Warren Burger who joined the majority opinion in Roe v. Wade. No one
can be a constitutionalist and vote for Roe v. Wade. Constitutional
conservatives should not listen to anti-constitutional liberals like Burger.
CK’s comment: Agree.
_______________________________________________
36)
Convention of States, et al . . .
Even if there
are safeguards, why should we take any risk by calling an Article V convention?
The reality is this: Congress and the federal
government are in fact on a path to destroy this nation. There is no question
about whether this will happen, there is only a question as to when our nation
will collapse as a result of federal abuses—particularly the abuses of the use
of the debt power.
The threat from Congress should be
rated as a 100% certainty. The threat from a runaway convention cannot be said
to be “zero” but it is very close to “zero” as a matter of both legislative and
judicial practice.
CK’s comment: Agree. Delegation
Resolutions would, however, assure that the delegates at the Convention would be
prohibited from entertaining any plans to overwhelm the Convention with devious
ideologies.
_______________________________________________
37)
Convention of States, et al . . .
The threat posed by Congress is far more deadly
than any threat posed by an Article V convention. The states must not listen to
fear mongers who will destroy this nation by allowing Congress to continue to
abuse its power unchecked.
CK’s comment: Agree.
_______________________________________________
38)
Convention of States, et al . . .
What Amendments
could be proposed to limit federal power?
Require a balanced federal budget with real teeth
and enforcement power.
Repeal all tax laws in five years through a
“sunsetting provision”.
Require a super-majority vote for replacing these
taxes and all new taxes.
Prohibit the federal government from spending
money on items that are lawfully funded by states. (Example, if the states can
spend money on education, then the federal government cannot do so.).
Prohibit the federal government from regulating
businesses, individuals, or property for purposes that states can also regulate.
(Example, if the states can regulate wages and hours, then the federal
government cannot do so. If the states can regulate health care and health
insurance, then the federal government cannot do so.)
Prohibit the use of executive orders or federal
regulations as a source of federal law that binds private citizens or private
property. All federal laws would be required to be passed by Congress.
Prohibit the treaty power from governing the
domestic powers of this nation.
All of these proposals would be germane under
this plan, but would require a majority vote of the states to be actually
approved and sent out for ratification.
CK’s comment: Citizen Initiatives
concludes that by trying to address all or more of these “Subjects” at a COS
convention will cause Congress to reject the application because it is not
Amendment specific. Multiple Single Amendment Conventions such as the
Sovereignty and States Rights Amendment Convention or other Single Issue
Amendment Conventions will prevent contention between the Legislatures and
Congress. Specific Amendments can be addressed in pre-approved Delegate
Resolutions that bind delegates at the Convention to the instructions by State
Legislatures.
Each of these issues should be
addressed by the States, but for a safe, predictable and successful Convention
the delegates must be bound by Delegates Resolutions. There is no restriction in
the Constitution preventing the State Legislatures from Calling (Applications)
on Congress for multiple Single Amendment Conventions simultaneously.
_______________________________________________
39)
Convention of States, et al . . .
The states have the power to save the Republic by
reining in the abuses by Washington DC. They must do so.
CK’s comment: Agree.
CK’s final comment: Comparing the Bill
of Rights or any of the 27 Amendments to the Constitution is incongruous.
Everyone of the Amendments proposed by the Confederation Congress and our
present Congress was with pre-approved texts that the States either ratified or
rejected. With Article V Conventions only the Legislatures have the authority
to pre-approve the text of Amendments, not delegates. Remember, the
Legislatures have the authority to amend our Constitution with proposed
Amendments which mandates how the Supreme Court will rull, how Congress will
legislate, how the Executive Branch will govern, and how Regulatory Agencies
behave. That’s a powerful amount of Constitutional authority and as long as
Conventions are limited by pre-approved Amendments through Delegate Resolutions
the deliberations at a Convention will be safe, predictable and successful.
Congressional prerogatives are a
different animal. The rules under Article V must be defined by the State
Legislatures alone independent of Congress, the Courts, Executive Branch and
Regulatory Agencies.
_______________________________________________
40)
INTERSTATE AGREEMENTS (Compacts Between the States) - Prohibitions in
Article I, Section 10
Compact for America
and Goldwater Institute are advancing the idea that the best
solution for addressing America’s problems is with an Article V 2.0 Turn-Key
Approach. Their strategy is to have the State’s agree to an Interstate
Agreement (Compact) that would define the Article V process from pre-Call
events, to the Call, to the final ratification of Single Issue Amendment. There
focus is on the Balanced Budget Amendment.
The
following is Goldwater Institute’s policy statement:
“Using an
agreement among the states called an “interstate compact,” the Compact for
America invokes Article V of the United States Constitution to advance one or
more specific constitutional amendments. An interstate compact provides the
vehicle to advance constitutional amendments because it transforms the
otherwise cumbersome state-initiated amendment process under Article V into a
“turn-key” operation.
The Compact for
America empowers the states to agree in advance to all elements of the
amendment process that states control under Article V in a single enactment that
can be passed in a single session. The Compact does require congressional
consent to work, but such consent is achieved by simple majority passage of
a congressional resolution, which consolidates everything Congress must do in
the Article V process in a single enactment and in a single session.
Specifically, the Compact and the counterpart congressional resolution include:
·
The text of the proposed amendment (specified in the Compact);
·
The Article V application to Congress (specified in the Compact);
·
An interstate commission that organizes the convention (specified in the
Compact);
·
The convention call (specified in the congressional resolution); All delegate
appointments and instructions (specified in the Compact);
·
The convention location and rules (specified in the Compact);
·
An agenda limited to the consideration of the proposed amendment (specified in
the Compact);
·
The ratification referral (specified in the congressional resolution);
·
The ultimate ratification of the proposed amendment (specified in the Compact).
In short, the Compact for America consolidates
everything Congress and the States do in the Article V process into just two
overarching pieces of legislation—one congressional resolution and one
interstate compact joined by thirty-eight states. It thereby dramatically
cuts the time and resources needed to achieve a state-originated constitutional
amendment. The Compact transforms the state-originated amendment process,
which otherwise requires more than 100 state and congressional enactments across
five or more legislative sessions, into something that can get done in a single
legislative session for each member state and Congress. Rather than a
legislative quest that will take ten to twenty years, the Compact can generate a
constitutional amendment in as little as one year.”
CK’s Comment: There are a few serious
oversights with this approach even though it does protect the text of the
Balanced Budget Amendment which would be included in their Compact between the
States.
1.
The Compact process
assumes that every element in the Article V process can be satisfactorily
addressed in one Compact by the States and that the triggers in the process to
automatically start the next event will occur.
2.
They want to secure 38
States to pass their Compact, not 34 to start the process with a Call. This
makes the task of Compact agreement by the States more difficult. The initial
Call requires 34 Legislatures.
3.
The Goldwater Institute
makes the following statement:
“The Compact is like a ballot
measure directed to state legislators, governors and Congress.”
Article V does not require the governors or Congress to have any say
in the sovereign authority that rests in State Legislatures alone. The Compact
causes the Legislatures to abdicate their sovereignty by attempting to define an
amendment process to include branches of government that have no authority under
Article V.
4.
The Goldwater Institute
makes the following statement that Citizen Initiatives is trying to prevent:
”The Compact does require
congressional consent to work, but such consent is achieved by simple majority
passage of a congressional resolution, which consolidates everything Congress
must do in the Article V process in a single enactment and in a single
session.”
Article V provides State Legislatures with sovereign authority
independent of Congress, the Courts, Executive Branch, Regulatory Agencies,
Governors and all other State governing bodies. The Compact for America forces
the Legislatures to secure permission from Congress before their Amendment
process can succeed. It also opens the door to a myriad of law suits as to the
legal and Constitutional process under Article V. Lastly, there is no assurance
that the process will move forward as they are projecting. There will be many
political, legal and Constitutional obstacles to overcome in the 50 States and
Congress.
5.
A very serious problem
with the Compact for America approach is it is likely to violate the
prohibitions is Article 1, 10 (paragraph 3) against Interstate Agreements
(Compacts):
“No State shall, without the
Consent of Congress, . . . enter into any Agreement or Compact with another
State, or with a foreign Power, . . . “:
Even if this prohibition can be overcome under Article V legally and
Constitutionally, the most difficult problem will be the political one.
Adversaries in Congress will have a field day attacking the proposed Amendment
due to its political ramifications starting with is the Interstate Agreement
acceptable in the Article V process. Remember, when the Legislatures Call on
Congress to convene a Single Amendment Convention for proposing an Amendment
Congress has no discretion when 34 States complete the same Call. With Compact
with America their entire process would be seen as inconsistent with Article V
which will be very problematic for the States and Congress.
6.
Finally, because in
Goldwater’s own words:
“The Compact does require
congressional consent to work,”
the proposal must be rejected if State Legislatures are to retain
their Sovereign Authority in Article V. State Legislatures must not abdicate
their Article V sovereignty if America has any chance to reclaim its
Constitutional heritage and values. __________________________________________
Charles Kacprowicz
Citizen initiatives
Single Amendment Conventions
P.O. Box 523
Spruce Pine, NC 28777-0523
director@federalamendments.us
http://citizeninitiatives.org
© Copyright 2014, Charles Kacprowicz,
All rights reserved.
LIST OF SUPPORTERS FOR “SINGLE ISSUE” AND
SINGLE AMENDMENT CONVENTIONS
MADISON AMENDMENT STRATEGY
The following proposed text
originated in the 80's under President Ronald Reagan's Presidency: *
‘‘ARTICLE ___. The Congress, on
Application of the Legislatures of two thirds of the several States, which all
contain an identical Amendment, shall call a Convention solely to decide whether
to propose that specific Amendment to the States, which, if proposed shall be
valid to all intents and purposes as part of the Constitution when ratified
pursuant to Article V."
http://madisonamendment.org
_______________________________________________
WHAT JAMES MADISON SAID:
James Madison writing in Federalist
43: "It (the Constitution) equally enables the general and the State governments
to originate the amendment of errors, as they may be pointed out by the
experience on one side or the other"
The Madison Amendment restores the
original meaning of the Constitution, it gives States the ability to use the
power that the authors of the Constitution intended them to have.
_______________________________________________
*Based on an idea originally proposed by Ed Meese when he was Reagan's Attorney
General, this strategy was created in consultation with a legal team led by
David Rivkin, outside counsel to the 26 states suing to overturn Obamacare. It
involves passage of state laws in as few as 26 states, or the passage of a state
constitutional amendment in just 13 states to end the risk of a runaway
convention and to give 34 states the power to force Congress to propose a
specific Amendment states want without holding a convention at all.
The idea of giving the states the
same power as Congress (a right the States inherently have in Article V, but not
recognized by many *) to propose an individual Amendment has a broad range of
conservative support including Americans for Tax Reform President Grover
Norquist, American Conservative Union Chair Al Cardenas and Past Chair David
Keene. Endorsers also include Parental Rights.Org President Michael Farris,
McCain 2008 Chair Charlie Black, and National Taxpayers Union Board Member David
Keating. It has been endorsed by ALEC, Goldwater Institute and NTU.
If state legislators in 34 states
had the power to safely force Congress to propose an Amendment to the U.S.
Constitution, the balance of state and federal power would shift significantly
in the states' favor. It could be possible for states, for example, to force
Congress to propose a balanced budget amendment to the U.S. Constitution.
http://madisonamendment.org/State_Leaders_Support.html
Supported by State Leaders In a
unanimous vote on Thursday August 5, 2010 the ALEC International Affairs and
Federalism Task Force recommended that ALEC (The
American Legislative Exchange Council)
endorse the proposed Madison Amendment to the U.S. Constitution.
Five former presidents of state legislators' organizations are now supporting
the Madison Amendment to restore a balance of state and federal power.
KIm Koppelman, past Chairman of the Council of State Governments from
North Dakota.
Dolores Mertz, former Chairman of ALEC and a Democratic State
Representative from Iowa.
BIl Raggio, former Chairman of ALEC and State Senate Minority Floor
Leader from Nevada.
Steve Rauschenberger, former President of NCSL and a former State Senator
from Illinois who is running for re-election this year.
Jeff Wentworth, past Chairman of CSG South and a State Senator from
Texas.
Abbreviations:
NCSL-National Conference of State Legislators
ALEC-American Legislative Exchange Council
CSG-Council of State Governments
MADISON AMENDMENT ENDORSEMENTS AND STRATEGY
The "Madison Amendment" would empower states to limit an Article V convention.
Delegates would have authority to call an up or down vote on a single amendment.
(For example a balanced budget amendment).
ENDORSEMENTS:
Conservative Leaders
Grover Norquist,
President, Americans for Tax Reform
Al Cardenas, Chair, American Conservative Union
David Keene, Chair Emeritus, American Conservative Union
Ted Cruz, Former Solicitor General of Texas
David McIntosh. Co-Founder of the Federalist Society
Colin Hanna, President Let Freedom Ring
Lew Uhler President, National Tax Limitation Committee
Charlie Black, Chair of the McCain 2008 Campaign
Michael Farris, President Parental
David Keating Board Member, National Taxpayers Union
Bob Williams President, Evergreen Freedom Foundation
Paul Jacob, President, Citizens Back in Charge
Chuck Muth, President, Citizen Outreach, NV
Curt Levy, Executive Director, Committee for Justice)
Current and Former RNC Leaders
David Norcross, Past General Counsel of the RNC
Bruce Ash, Chair RNC Rules Committee
John Ryder, Chair, RNC Redistricting Committee
Florida GOP Ntl Committeeman Paul Senft
Ron Nehring. Past Chair, CA Republican Party
Saul Anuzis, Past Chair, Current National Committeeman Michigan Republican Party
Organizations
ALEC (The American Legislative Exchange Council)
The National Taxpayers Union
The Conservative Party of N.Y.
Congress:
Rep. John Culberson (R,
TX)
Rep. Henry Cuellar (D, TX)
Rep. Rob Bishop (R, UT)
Rep. Cynthia Lummis (R, WY)
Rep. Tom McClintock (R, CA)
Rep. Louie Gohmert (R, TX)
Former Rep. Walt Minnick (D, ID)
Former Rep. Bob Livingston (R, LA)
Past Chairs/Presidents of
Associations of State Leaders:
Steve Rauschenberger (R,
IL) NCSL (National Conference of State Legislators)
KIm Koppelman (R, ND) CSG
(Council of State
Governments)
Dolores Mertz (D, IA)
ALEC
Steve Faris (D, AR) ALEC
Bill Raggio (R, NV) ALEC
Noble Ellington (R, LA) ALEC
Jeff Wentworth (R, TX) CSG-South
Trey Grayson (R, KY) NASS
(National Association of Secretaries of State)
Legal Experts:
David Rivkin, Outside
Counsel to 26 States suing to overturn "The Affordable Health Care Law known as
"Obamacare"
Chuck Bell, Past Chair Republican National Lawyers Assn
Don Ayer, Former Deputy Attorney General of the U.S.
Bruce Fein former DOJ Deputy Associate Attorney General
Mike Carvin, Constitutional Litigator
Ron Rotunda, Chapman University
Phil Kiko Former Chief Counsel,
House Judiciary Committee
Former Counsel to the U.S. House of Representatives Michael Stern
State Leaders
Jim Geringer Former Gov WY
Ed Schafer Governor Former Gov ND
Former Lt Gov Andre Bauer (SC)
House Speaker Jim Tucker (LA)
House Speaker Becky Lockhart (UT)
Senate President Michael Waddoups (UT)
Speaker
House Speaker Bobby
Harrell (SC)
State Legislators:
Nh Sen Fenton Groen, Rep
Roger Berube
Ct Rep John Piscopo
Md Rep Michael Hough
Pa Rep Gordon Denlinger, Rep. Garth Everett
Va Rep Jim LeMunyon, Brenda Pogge,
Nc Rep. Fred Steen, Sen David Rouzer
Sc Rep Liston Barfield, Rep. Richard Chalk
Al Rep Jack Williams
La Rep Noble Ellington
Ark Sen Bill Lamoureaux
Tn Sen Stacey Campfield, Rep. Matthew Hill5
Mi Sen. Tonya Schuitmaker
In Sen Jim Buck
Il Sen Chris Lauzen
Mn Reps Steve Drazkowski/Glenn Groenhagen
Nd Rep Kim Koppelman, Rep Blair Thorsen
Sd Rep. Lora Hubbell
Ks Sen Jean Schodorf
Tx Rep Jerry Madden, Sen Jeff Wentworth
Nm Rep David Chavez, Rep. Yvette Herrell,
Co Sen Kevin Lundberg, Sen Kent Lambert
Id Sen Curt McKenzie
Wy Rep Sue Wallis
Ut House Maj. Leader Brad Dee, Rep. Ken Ivory, Rep. Brad Daw, Rep. Paul Ray
Az Sen Frank Antenori
John Overington, Senior Delegate -
State of West Virginia “Senior Delegate over 30 Yrs”
Glen Bradley, Representative -
North Carolina “House of Representatives”
Josh McKoon, Senator – State of
Georgia
Bruce Tutvedt, Senator – State of
Montana “Senate President Pro Tem”
Peggy Mast, Representative – State
of Kansas
Art
Wittich, Senator – State of Montana
Alan Hale, Representative – State
of Montana
Josh Brecheen, Senator – State of
Oklahoma
Phil Frye, Representative - State
of North Carolina
A great many other State
Legislators in the following States
Support Citizen Initiatives’
“Single Amendments”
Alabama, Alaska, Arkansas, Arizona,
Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana,
Maryland, Mississippi, Missouri, Nebraska, Nevada, New, Hampshire, New Mexico,
North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Carolina,
South Dakota, Tennessee, Texas, Utah, Virginia, Montana, Wyoming
Other Leaders
David M. Walker, Former
Comptroller General of the United States
Former Ark Rep. Dan Greenberg
Former Mo Rep. Ed Emory
Former Ohio Sen. Kevin Coughlin
Richard Vedder, University of Ohio
Barry Poulson, University of Colorado
Partial list. Titles for identification purposes only.
_______________________________________________
SURVEY RESULTS*
75 percent of American
voters think "a check on Washington is what we need now in order to restore the
balance of power between the federal government and state governments.".
80 percent believe the relationship
between the federal and state governments should be more like a "partnership
with equal footing and influence".
72 percent say that states and federal government are not sharing power today.
57 percent of Democrats, 82 percent of independents and 95 percent of
Republicans agree with we need "a check on Washington"
*These are the results of a national poll done by Kellyanne Conway for the State
Policy Network.
For a .pdf document of Tools with Teeth go to:
http://citizeninitiatives.org/Tools_with_Teeth.pdf
