This article discusses why we must have an Article V Convention and reminds us that we are sovereign, not the government by Bill Walker
(libertarian)
Sunday, November 29, 2009
Why should the Constitution be obeyed and Congress compelled to call an Article V Convention, something which we've never done in our entire history? Isn't it too much of a risk? Aren't those in power now likely to take a convention over for their own purposes? Won't the convention take away our rights by creating a new Constitution and imposing it by fiat? Why take the risk?
Because amendments work. We've tried tea parties. No effect. We've tried the 10th Amendment. No result. We've had our Continental Congress 2009. No result. We've elected countless "reformers" to Congress. No change. We've posted literally millions of words on blogs. No help. We've written to members of Congress. Ignored. We watch with a feeling of helplessness as discussion goes on in Congress to make us criminals in our own land if we don't sign up for a government program. We watch trillions of dollars being spent to save corporations "too big to fail" all the time realizing the entire housing crisis which got us into this mess was created by these "too big to fail" corporations and that the solution, simply extending the length of the loans so as to drop the monthly payments, would have cost us nothing.
We've tried everything. Except an Article V Convention. That we're told is too risky. It would open a Pandora's box that those in power would use to seize even more power. Ignored of course by these gloom and doom types is the fact those they speak of already have such power and if they were inclined to use it for the purposes critics of an Article V Convention say, they would have long ago. In short, Congress has the same proposal power as a convention and can use it any time it wants to.
So why is a convention so much more "risky" than allowing Congress to propose all amendments? The answer is those in Congress or the government can't control an Article V Convention. Simply put, because the president cannot have anything to do with the amendatory process, this prevents Congress from acting legislatively to control such a convention. As the courts have ruled they don't have anything to do with the amendatory process, it means you can't go into federal court and control the convention with a lawsuit. In short, as it was designed to be, an Article V Convention is a STATE proposing body designed and intended to allow for a completely separate means of amendment proposal independent of the national government. Thus a STATE convention proposes amendments which then are considered for ratification by the STATES leaving the national government entirely out of the loop as far as actually deciding on the fate of a proposed amendment.
So who controls such a convention? The answer is the Constitution and the states. All 50 states have submitted 750 applications for an Article V Convention. The texts of these applications can be read at www.foavc.org. Even a cursory reading of them clearly shows there is a general theme in them, that is reduction, control and regulation of an over expansive national government by elimination of income tax, review of Supreme Court rulings, term limits on government officials, an initiative, referendum and recall amendment and several other such amendment proposals.
The important thing to realize is that if the states truly feared an Article V Convention they wouldn't have submitted the applications to cause a convention call in the first place. Instead, they have submitted applications in overwhelming numbers. The Constitution demands 34 applications from 34 states. The states have submitted twenty times that number. Moreover, these applications and the amendment proposals they contain were, for the most part, submitted years before the government crisis we now face, came to reality. In short, the states saw this problem coming years ago and did their constitutional duty to provide for the means to prevent and resolve it by submitted amendment proposals intended to solve issues. And isn't that what we want? A solution?
These amendment proposals offer us hope and the means to actually solve the problems of this nation. When, for example, was the last time you heard or read about a discussion concerning slavery in this nation, or giving the right to vote to women? You don't. Why? Because an amendment resolved these issues and others like them. Permanently. Amendments work. Likewise today, amendments can be written to bring the government back under control, to end the obvious and blatant corruption of the government. To give an example, there is nothing to say the people cannot pass an amendment granting them power of review over decisions in Congress (initiative or referendum). Nothing says the people cannot similarly review court rulings. We are sovereign, not the government. Sovereignty flows from us to the government, not the other way around and there is nothing to say we cannot take back whatever portion of that sovereignty we deem necessary. An Article V Convention will not only serve to remind those in power of this fact but also serve to make sure it permanently stays that way. If the government has to be established such that its actions require review by votes of the people before the government can act because that is what it takes to keep it under control because it lacks the self-discipline to do so, then so be it.
The Constitution offers us the means whereby we can regain control of the government as well as our lives. It also provides for safeguards to ensure that such a convention is properly conducted. The most important regulation in the Constitution is the ratification procedure. Without ratification of three fourths of the states, no amendment proposal can become part of our Constitution and such ratification is executed long after the convention has passed into history because the Constitution mandates a convention can only propose amendments. Once it has done so, the convention automatically disbands having no other purpose or business to conduct. Other safeguards exist. Beyond those referenced earlier is the people must elect all delegates to a convention. Unlike the usual political race, people are used to, because the only issue will be amendment proposals and because those proposals have to be written down, the election will be in effect a referendum on the proposals. Thus, voters will decide on the issues rather than on the false promises of a political candidate whose only goal is to be elected.
Amendments offer solutions to our problems. The Tenth Amendment does not require Congress to do anything; First Amendment petitions, which include things like Tea Parties and Continental Congress 2009, do not mandate any action by the government. But Article V does. If the states apply, Congress must call a convention. Congress has refused to do so in criminal violation of its oath of office. (See FAQ 9.1 on our web page). Unlike other constitutional violations, the government has admitted it is in criminal violation of federal law for not calling a convention.
Why has Congress done this? Why are they willing to risk going to jail instead of obeying the Constitution? Because they want the power and control of the Constitution and the government and they figure the people are so stupid they will let it continue to happen. How else do you explain comments such as Nancy Pelosi ("Are you serious?") or other similar comments? Moreover, they realize that unlike all the other efforts of government that have thus been tried, amendments work. They ought to know. After all, they have proposed 27 of them that have done just fine at addressing problems. Think about it: amendments have a proven record of accomplishment of success of nearly 250 years. Can any other idea, tea parties, Tenth Amendment movement and so forth even come close to that claim?
So, what can you do to make the change in order to get your country back? Support an Article V Convention. Don't be swayed by those who say it will be the end of the earth as we know it. As shown on our website, this nation has had over 700 state conventions and not one has ever done anything like these fear mongers say. Remember this: these people want you to believe a convention will scrap the Constitution but that first requires you accepting the Constitution can be scrapped at all. In short, they want you to accept the government can scrap the Constitution as it is doing right now. Take time to examine these people and their so-called evidence. Ask them to show documentation proving their claims, such as when it has happened before, or statements by public officials in public record of their intent to use a convention as these critics say will happen. Ask them to name the political party or leader that has such political power they can take over the entire United States through a convention but is so politically impotent they can't get Congress to call a convention so they can do so.
Instead, take action. Call up your member of Congress. Demand to know why they haven't called a convention. Demand to know why they feel they can veto the Constitution. Talk to your neighbors, friends and so on about a convention. Ask why your right to a convention, the right to control this government is denied by that government. Don't be surprised if you completely ignored by the government. After all, the government has gotten away with this for a very long time and they think they still can. Until people stand up for their right, they still will.
However, the American people will not and cannot stand for the overthrow of their Constitution and in this case, that means holding an Article V Convention. If there are concerns then view them as challenges, not obstacles to ensuring the Constitution is obeyed. Those who urge otherwise, who always say they want to "defend" or "support" the Constitution but still urge it be disobeyed by not calling a convention when the states have applied should be labeled for what they are---constitutional hypocrites and a threat to our nation, our way of life and most importantly our Constitution, which, when it is obeyed, has always served this nation well.
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Posted By: john de herrera
Date: 2009-11-29 13:53:52
this is one of the best, if not the best, argument ever for the Article V Convention. i hope the folks here recognize it for all its truths. thanks for your work bill. one day the country will thank you for it.
The truth was spoken here. It amazes me that poofertarian defeatists claim to be pro-Constitution (or some other natural rights argument) but want to do nothing that might actually bring us closer to real reform. It's not enough that poofers have sabotaged their own ideology, they have to thwart all efforts to change anything at all.
Be warned, Bill. I'm sure Walt is formulating some logic-skirting rant against this or will be very soon.
Posted By: Joel S. Hirschhorn
Date: 2009-11-30 08:51:05
This excellent articulation should compel thoughtful Americans to see all incumbents in Congress as totally unworthy of their vote, unless they come out publicly in support of Congress obeying the Constitution and calling the first Article V convention. If either for the first time or finally you see the merit of supporting what the Constitution offers us, then become a member of Friends of the Article V Convention at foavc.org. The greater our membership the greater our power to make Congress obey the supreme law of the land.
Posted By: Jahfre Fire Eater
Date: 2009-11-30 11:20:05
Hi Bill,
Nice work with the "bait and switch" title. :-) You nearly fooled me. (Just kidding, I knew you couldn't write anything but the same thing over and over.)
It makes sense to be clear on the "why?". You didn't even make that point before you tossed an array of questions aimed at defending your assertion that an Article V convention would magically be a good thing for individual liberty.
From there you digressed into a self-referential argument that rests on the fallacy that your intentions will be the likely outcome. No one who fails to grasp the difference between intentions and likely outcomes can hope to dampen my skepeticism. The more you offer this kind of ridiculous fantasy the less I can believe you believe it.
If you want to acknowledge the risks and to talk about ways to mitigate those risks by taking appropriate and constructive behavior designed to enhance the liklihood of liberty being protected I'd be more than happy to do that.
If you just keep evangelizing on your faith that everything will work out just the way you say you want it to then I just can't believe a word you say. I smell a rat and believe it is here to steal my future liberty.
Simple point. Show something that will work and has a better track record and people might believe you. As to mitigating the risks, what part of the STATES regulate the convention don't you grasp? After all, you are on public record supporting a convention (thought I'd forgotten that didn't you) when you ran for public office and got your butt kicked in the election so obviously what you stood for was rejected.
You say there are obsticals. Fine. Climb off your high horse and state them in plain English and I guarantee you they can be solved. Right now you say the states proposing amendments to the Constitution is a threat to our liberty. Therefore you must think that if the national government controls everything, we will be fine. Great liberal thinking. A true Obama supporter if I ever read one!
The fact is all you want to do is gripe and do nothing and frankly your "solution" is wearing thin if not just plain worn out. You never offer a solution that will work, you only oppose something that will. Where are your facts Fire Eater? Write a column and prove your statements. I've asked this before and you've backed down before and you know it and I can link to the articles I've written where I've made you back down.
Do us all a favor. Either come up with a real solution (and please not the we gotta work in the neighborhoods speel again--May I remind you about your column on your own neighborhood fire department and how you couldn't even work with others on something that basic) or step aside of those really offering a solution.
If anyone remembers, this was Walt's reply in Joel's column:
Why is it that any time someone like me points out reality, we are automatically labeled as anti-Constitution? And notice that none of the other commenters here, including the article writer, contradict the truth what I'm saying. They know what I'm saying is true. They just don't like the truth of it, which makes them the naysayers.
Does anyone notice the doublethink here? How the people who are actually asking for detractors to clarify their critiques are labelled naysayers because they can't read their opponents' minds?
I quote Marbary v Madison: "Something is either constitutional or it is not constitutional. Between these two points there is no middle ground."
The same holds true with support of the Constitution. Either you support it, or you don't. Between these two points there is no middle ground.
It is one thing to have concerns regarding the holding of an Article V Convention. But if you love this country and if you support its form of government then you must and are required by that loyality to regard such issues as challenges to be overcome and resolved. But you are as Fire Eater and others like him mere sunshine patriots, constitutional hypocrites and so forth who earn these titles because they believe the Constitution should only be obeyed when it suits thier political purposes and then criticizes their political opposition for doing the same, then you use those challenges as excuses to obstruct and scrap the Constitution.
It is thier actions that define their label which as with all labels merely indentifies what they, by those acts, have already established.
The fact is this: not one detractor of an Article V Convention has presented one documented, verifiable fact as to why an Article V Convention should not be held. They have not presented a single reason of objection that cannot be overcome by the passage of a simple law or other commonly used legal device already existing in our system of law that cannot be equally applied to a convention so as to resolve the problem presented. In short, they haven't shown or more importantly proved their case.
Instead their program and objections consists entirely of lies which we have exposed. They begin by mis-quoting public record by stating the wrong number, not a few but by hundreds, of applications the states have submitted. They then mis-quote a Chief Justice of the United States, having him say things that public record proves he believed exactly to the contrary. They raise specters of fear as to what their fellow citizens will do without the slightest shred of proof or evidence to back or prove these outlandish claims. Finally they become offended when we label them for exactly what they are.
Their lies, as are all lies, are being rejected by the people of this nation who are tired of lies and want a solution. The issue is constitutional; is it any wonder that the solution is found in the Constitution. These people say they want to "defend" the Constitution but always advocate that it not be obeyed? They never once, not a single one of them, explain how by disobeying a thing, they preserve or defend a thing.
But maybe the most revealing hypocricy of all is the fact these detractors all share a common trait. They are all supporters of states' rights. They say they support the Tenth Amendment and the right of the states to assert themselves and have that sovereignty preserved. Then they turn right around and accuse the states of being threats to this nation by saying that if ever a STATES convention to propose amendments is held, that convention, meaning the states, will overthrow the Constitution and institute a new Constitution after removing all our rights. For after all this is a STATE Article V Convention, not a national convention for that form of convention lies in Congress which can propose amendments any time it so chooses.
Why do they people choose to oppose the STATES proposing amendments to reduce an overbloated federal government followed by the STATES ratifying amendments proposed in a STATES Article V Convention if they say they support the STATES? Because at their core they are simply political liars and constitutional hypocrites.
Posted By: john de herrera
Date: 2009-12-02 00:07:39
fire eater? walt? what do you guys have to say to that? i hope lightbulbs are going on in your heads. a great person is able to change their mind. i think bill has shown very clearly that your anti-conventionist positon has no clothes. if you guys don't come clean now, you are either operatives and a threat, or your denial is a threat. there is no middle ground.
the problem is getting this argument off the blogs and onto mainstreet. even if walt and fire eater accept they were wrong and get on board, that still will not galvanize the numbers needed to make special interests get out of the way. the Article V Convention needs to be packaged and sold to the public at large. we are still very much in danger of simply being ignored, and/or demonized with the same arguments walt and fire eater have made, but on a national mainstream media level.
John misses a point of logic in his comment. For the mainstream media to demonize us requires two events to occur. One, they must publish material thus informing all about an Article V Convention and to do so requires they quote us FOAVC as a source as there exists no other. To do so will therefore inform all about a convention. Hence, such coverage cannot be harmful.
Two, even the mass media cannot hide the fact of the number of applications and would massively harm themselves if they were to attempt to do so. Remember this is public record we are discussing and even the mass media doesn't lie about such things where a lawsuit might arise. Its libel or slander to deliberately misrepresent facts and attribute such a lie to a specific person or group which is why even the mass media doesn't do so where the facts irrefutably force them to report the news accurately.
In sum, the old adage will apply. There is no such thing as bad publicity. So I say if the mass media wishes to do so, bring it on. It can only help to spread the word and prove our cause, not defeat it.
Posted By: john de herrera
Date: 2009-12-02 23:16:34
bill, if indeed the mainstream media is ever forced to take up the issue (again), isn't it logical to think it will do what it's always done? and that internet operatives like fire eater will do what they've done for the past seven years? won't the mainstream media again refer to it as a "constitutional convention," have the NRA scare people that it might take away guns, and have the ACLU scare people that we might lose the bill of rights? isn't it doubtful the talking heads/mainstream journalists will ever talk about the subject honestly? mention the correct number of applications? will the mainstream media suddenly begin talking about this in a manner which seriously considers whether members of the 111th congress should be sent to prison for a year? what if you turn out to be a guy who blogged, and that's what you go to your grave as--a guy with a link to a database that was passed over because the facts never got off the internet and favorably into the minds of enough average americans? that was always my fear, and still is, and why i attempted to get you and the others to create something that could Show, not Tell (another old adage).
while you have slayed some intellectual dragons on the internet, and that is good, and i thank you for it, unless we get fifteen to thirty million americans COGNIZANT that the Article V Convention is not dangerous, and that we have everything to gain by demanding it be convoked, the powers that be will do what they've done. that seems logical.
i was only indignant with your refusal to acknowledge this: foavc is in danger of remaining below the radar because it's going to take not only patriots, and angry bloggers, but consumer america to want it before congress will ever issue the call.
there are americans who are really good people, consider themselves patriotic, but will actually remain uninformed, and/or in denial/hypocritcal because they're never going to venture onto the net looking for what we've been writing--and even if they did, much of it would be like attempting to learn greek before they'd get it. in short: show, don't tell.
it does not seem logical to presume the mainstream media will ever mention foavc when it and members of congress are colluding. if anything they/it will appropriate the idea and act as though they discovered all themselves. but if so, so be it, the battle will have been won.
the question is, what if they never have to pretend they discovered it all by themselves? and they just watch you and i die and laugh? being right and raising awareness are great, but unless enough awareness is raised, this opportunity will have been missed, and i seriously wonder whether there will ever be another.
John, I hesistate to respond here but I feel I must say this much. No one is laughing about this issue John, not even Fire eater or anyone else like him. Because at the heart of all of this they realize there is a very serious question before them: whether the government can officially veto the Constitution when it is is indisputable that the action they have taken or refused to take is in clear, obvious and undeniable violation of the direct text of the Constitution.
When the issue came up in the 1980s John no one was aware of the hundreds of applications that existed. Congress had never summarized them nor made them public. Everyone thought there were only 32 applications for a specific amendment proposal and that many years before an effort had failed by one state (a false statement in both cases as the public record shows) but the fact is no body, not the opponents, not the proponents, not the government nobody realized how many applications existed.
No one has forced the government to admit what the terms of a convention call were in the 1980's.
All of that is now gone. Anyone who wants to know how many applications there are simply has to go to our website and read them. And a simple reading of Article V makes it clear there is a constitutional violation. Likewise a simple reading of FAQ 9.1 makes it clear the government has admitted it has violated the Constitution by refusing to obey it and call a convention. It has also stated the terms of a convention call, that it is peremptory and based on a simple numeric count of applying states with no other terms or conditions.
So the question now is: do the people allow the government to be able to formally veto, ignore and scrap the Constitution of the United States whenever the government feels it is obliged to do so? True, many others have charged the government has violated the Constitution in other ways. But when examined, this is almost always based on their interpretation of the Constitution, on what they feel is constitutional rather than a proven, documented, irrefutable set of proof admitted to by the government. This is not the case with Article V. The proof is there and the government has admitted it.
Thus, this is issue will not die John because the word is out there. If all the leaders of FOAVC were to pass tomorrow, the word would still be out there and it is too late to prevent it. Those who oppose a convention have to thinking very seriously about the effect of their opposition: do they really want to succeed in vetoing Article V when they know to do so establishes the government has the right to veto all of the Constitution.
No one is laughing John about this question John and they won't at anytime. As to consumer America getting the word John, you might start googling Article V Convention, constitutional convention and foavc. Articles in all types of newspapers, blogs, comments and so on are now on the Interent daily and they are there because consumer America is writing them, not FOAVC. More and more radio shows are discussing the issue beaming directly to consumer America and telling them about an Article V Convention and how they American people have been robbed of their right to a convention.
Simply put, the word is spreading John and no one is laughing.
Posted By: john de herrera
Date: 2009-12-03 23:03:30
no one was aware of the applications back then? my understanding is that certain people have always been aware of them--those who hoped to hell no one would dig for them. but thanks to foavc word is spreading. thanks for your efforts. god's speed compatriot.
I find it interesting that the topic of a nationwide Constitutional Convention (the first of its kind) is being discussed right as California is could be voting on its own first real convention in more than 130 years next November.
To comment on media woes, I'd point to the model the Bay Area Council and other regional policy institutes in the state are using to gain traction with voters.
The convention idea initially sprung forth in an editorial published in the SF Chronicle by a prominent business leader, in a major region of the state. If such success is to be replicated on the nationwide level, you need that kind of publicity.
It started with just Wunderman's editorial, but after almost a year and a half, similar commentaries began trickling in the print world and in the blogosphere. Then, major pollsters finally began to pick up on the scent and ask voters if they favored the idea.
The message is getting out, but there are several roadblocks that, so far anyway, have stumbled proponents, and while your arguments are fairly sound (for the medium), there will need to be much more concrete proof and easing of public anxiety. 2010 surely won't be a bad time to pick up endorsements from politicians.
Actually, there is a major difference in law between a national convention and the California convention. In California, according to law, the voters are being asked in initiatives filed just recently, whether or not to have such a convention. The purpose would be to write a new constitution for the state, something it has done, I believe, at least twice before in its history. In short, a decision to hold a convention which requires a great deal of public discussiona and thought.
On the other hand, the decision to hold an Article V Convention has already been made.The purpose of that convention, unlike the California convention, would be to propose amendments to our present Constitution and no more. The Constitution mandates a convention be held. Congress, in violation of the law, has refused to do so. Therefore the publicity needed is in regards to having Congress do its mandated duty, not a decision over whether or not a convention shall be held. This is why FOAVC does not suggest the states submit even more applications because it would mean that it is conceded those applications already in place could be ignored by Congress which of course means any future ones could also be ignored.
From a public relations point of view it is important that an Article V Convention be discussed and accepted and endorsed. But legally and constitutionally speaking, the public support necessary for such a convention has already happened. Now what it is needed is public pressure on Congress to do its duty.
And California, for the record, is only one of several states currently or recently considering conventions. By my count, in the last two to three years, nearly a dozen states have done so meaning at least 25 percent of the states have discussed state constitutional conventions.
Actually, there is a major difference in law between a national convention and the California convention. In California, according to law, the voters are being asked in initiatives filed just recently, whether or not to have such a convention. The purpose would be to write a new constitution for the state, something it has done, I believe, at least twice before in its history. In short, a decision to hold a convention which requires a great deal of public discussiona and thought.
Well of course, there are always differences. However, I think, to undermine the similarity in the processes of gathering support by saying that such a threshold has already been reached by the States would be an egregious mistake.
The last time public pressure to call a convention came to a fever pitch was in the late 80's over the proposal of a balanced budget amendment. While it is true that there have been numerous applications by the States to convene such a body before then, it is also equally true that just as many have rescinded their calls at various points in history.
FOAVC does not suggest the states submit even more applications because it would mean... those applications already in place could be ignored by Congress which of course means any future ones could also be ignored.
Article V'ers face an uphill battle, if they can even prove that enough applications remain valid to call such a convention. Sheer numbers collected from arbitrary dates will not make a sound legal argument to call a convention. So if you were ready to say that the hundreds of previously ignored resolutions were enough to warrant a convention alone, I think you're ignoring too great a potential sinker.
From a public relations point of view it is important that an Article V Convention be discussed and accepted and endorsed. But legally and constitutionally speaking, the public support necessary for such a convention has already happened. Now what it is needed is public pressure on Congress to do its duty.
True, but in an irrelevant context. If Congress has so far flaked on its duty, then we must address why they keep getting elected and no pressure has so far been made on them before. It is because voters were either placated or became apathetic, and stopped applying the pressure.
Therefore, where do you start exerting pressure once again? From the voters! But you must convince them. The mere formation of this "Article V" movement is a concession that you must reaffirm the public's approval of such a convention. It is an educational campaign is it not? What were you saying, for the record, about the situation in California being completely different?
Since you're fond of differences, I will mention a few more. The groundswell of support in the 80's had a particular aim, which was at the time, very bipartisan. It had a specific amendment in sight, one that would have required a balanced budget amendment, and there were similar flirtations with term limiting Congress as well.
This is what I meant when I referred to the California movement's focus for calling such a convention. It is all the difference in the world to have a tangible goal with facts and hypotheticals, rather than a rhetorically ambiguous call for amendments (as you are currently suggesting). While your article is well-worded, it is short on both a limited topic and specific idea. That is a big no-no.
Back to the California example, I included it because of particular importance you might have found helpful is the fact that California is the political frontier where such ideas are born and regularly die. Your attempt to marginalize public support is little better than "it existed at one point, so it must still apply". Need we be reminded that calls for a convention amongst the populace subsided in the mid-90s when the budget was balanced WITHOUT amendments? It's a fine example of co-opting and voter placation and the plain fact of the matter is that is what you're up against.
If you want to hold Congress accountable, where are you going to find the support? You already have half the answer- you need to remind citizens of Congress' duty to call for a convention. And such a campaign is no different than the Bay Area Council's push to bring the issue before Californians, except that the BAC's campaigning for a direct vote.
You are campaigning for an indirect vote. There is no national referendum; you must win the support of voters and through them Congress. So it is with all this in mind, that I reiterate what you might do to improve your awareness campaign or whatever you would like to call it by watching how California's situation develops.
P.S. I can only tell from your generally dismissive response two possible things: 1) Either you did not understand that I am for such a convention, and merely critiquing how to better conduct your campaign 2) Or, given that, you don't respond to critiques too well at all. Which doesn't bode well for your cause.
P.P.S: To add, California is not contemplating a total rewrite of its constitution. Such a feat has never been attempted before (to the contrary of what you wrote) and would absolutely not survive in today's political climate. Current language calls for a democratic process to produce a major revision, not unlike the one California received in the 1960's. It may be true that there have been over 700 state constitutional conventions, but it is untrue to say that any of them are "new" constitutions, or much less, rewrites (which is different than completely new constitutions). California's last "rewrite" was 1879, and happened less than 20 years after the first constitution failed. This puts California on a footing with the U.S.'s first failed governing document, the Articles of Confederation. Thus, it is reasonable to link California's current discussion, and likely referendum, on having a real convention is similar to the discussion whether to have a national one for the first time in history.
Thank you for your time. I'm aware this has been a lengthy post. Just wanted to clarify a few nonstarters in your reply at the expense of brevity.
The previous post has an error. The quote "From a public relations point of view" ends at "what is needed is public pressure on Congress to do its duty", not as the italics would suggest.
First of all, if my reply to you in anyway struck you as "dismissive" you have my sincere apology. In no way did I intend my remarks to send that message and if they did so, then I am sorry.
What I did intend, and obviously by your reply to my comments, did not communicate fully and correctly, was that there is a difference between the types of conventions; a state convention, in this case California and a national Article V Convention.
However I will respond to your comments and I assure you they are not meant to be dismissive but you have made statements that are factually wrong and from those reached conclusions which are in error.
First of all, the pressure for a convention to propose amendments in the 1980's was for a particular amendment, a balanced budget amendment. Public record now shows that goal was achieved. Simply put, enough states applied for a balanced budget amendment to cause a convention call on that issue alone. The texts on our site prove it and I remind you these are photographic copies of actual government records taken from the National Archieves. They can be verified independently anytime by anyone in any public library or at the archives anytime anyone wishes to do so. In short, they are authentic.
They prove, beyond question, that the single threshold required under Article V has been met. Beyond which, is the official admission by the Solicitor General of the United States acting in his official capacity as Solicitor General and as attorney of record for each member of Congress named separately in a federal lawsuit before the Supreme Court of the United States, that the basis of a convention call was a simple numeric count of applying states, with no other terms or conditions, that such a call was peremptory upon Congress and that the members of Congress were in criminal violation of their oaths of office not issuing the convention call.
Based on these irrefutable facts of public record, it would be, in fact, an egregious mistake, NOT to state what they prove: that the threshold for an Article V Convention has been reached and moreover that the government has acknowledged this fact. Indeed, it would be an outright lie for FOAVC to state any other situation regarding the applications and FOAVC does not lie.
You discuss rescissions of applications. Again the public record proves you are mistaken in your conclusions. First of all the public record shows that even if these rescissions were valid, which they are not, there is still not enough of them to reduce the number of applications below the two thirds mark. Second, the public record shows that several of the states have, since their rescissions, resubmitted new applications thus nullifying their rescissions IF rescissions were valid in the first place. They are not and that is not our opinion. It is the opinion officially and formally of the Supreme Court of the United States. First, in numerous cases, the Supreme Court has ruled the Constitution cannot be vetoed. Therefore, when it states a convention must be called "on the application of two thirds of the state legislature" that is what it means. Thus, if you refer to public record, you'll clearly see that some 40 years before one rescission had been submitted by any state, the two thirds threshold had been reached. Congress has been obligated under the terms of Article V since that moment to call a convention. But the matter does not end there.
In not one, but two decisions, Hawke v Smith and U.S. v Sprague, the court addressed the issue of interpretation or construment, that is implied powers, within Article V. In Hawke, the court said, "It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed." In Sprague the court was even more emphatic,"The United sTates asserts that article 5 is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates that this is true. ... The Constitution was written to be understood by the voters: its words and phrases were used in their normal and ordinary as distinguished from technical meaning: where the intention is clear there is no room for construciton and excuses for interpolation or addition."
In sum, the court held that Article V is a what you see is what you get part of the Constitution meaning unless it states it, it does not exist. Article V does not allow for nor describe rescissions of applications by the states and therefore does not exist.
As the government itself has officially, formally and as a matter of public record conceeded the argument that the applications are valid and that Congress is peremptorily required to call and that call is based on a simple numeric count of applying states with no other terms or conditions, it is incumbent upon FOAVC to state what is, in fact, not our opinion, but that of the government, i.e., public record. Your positions attempt to place terms or conditions where even the government admits this cannot be. You ignore the fact the call is peremptory, a legal term whose meaning has not changed since it was applied specifically, directly and only to the convention clause by Hamilton in Federalist 85. Therefore, at several major points there are differences between an Article V Convention and the efforts in California most particularly, as I stated, that the decision has already been made in Article V (and what I should have said) already acknowledged by the government while a decision by the voters of California has not yet been made.
So, in sum, FOAVC has proven the applications exist sufficent to cause a convention call and the government has admitted the same.
I agree with you that having members of Congress reelected is an issue. But you must realize that until just last year no one actually knew, unless they had happened to have read a single article in one legal review, that sufficient applications existed to cause a convention call and no one, until a lawsuit was filed in 2004 had ever bothered to go to court to determine what was the basis for a convention call, in short, established for the public record upon what was Congress supposed to determine when it had to call.
These now have been done and acknowledged by the government. We now know what is the basis of a call, that it is a criminal violation of oath of office by those members not to call and that sufficient applications exist to cause a call. And yes, part of FOAVC's mission is education and through that education bring political pressure on members of Congress from the voters and they are doing so in ever more increasing numbers.
FOAVC will not change its non partisan position. Indeed, we realized that the very reason earlier movements failed was because they favored a specific amendment proposal meaning that either one or the other political side would be against us from the start. We therefore chose not to favor an amendment, but the process itself. Regardless of how many amendment issues are proposed until Congress is made to do its constitutional duty, new applications are meaningless. That is why we do not support the states trying, as some have suggested, to submit a new set of applications as this very action affirms that Congress has the right to ignore all that has already been submitted and the clear language of Article V mandates it does not have such a right.
However, the advantage we have is the law is on our side as has been admitted by the government. To be blunt, members of Congress have been reduced to avoiding us by running down halls at public meetings, arranging our members not to be called on during public discussions and outright ignoring emails and other such commuications either by outright not replying or doing so with utter nonsense completely off subject. This will not last. Sooner or later one of our supporters is going to corner a member of Congress publicly and ask him or her to explain what gives them the right to veto the Constitution.
As to your comment regarding balancing the budget. The Supreme Court mandated when it overturned the law that required a balanced budget that it required an amendment to do so meaning while the budget was balanced temporarily, it did not remain so.
I have been watching California and I see a very public discussion on the Internet and in other state media. Some pro and some con. In my mind, mostly pro. But I can also tell you this. FOAVC has contacted several of the leaders of the California movement for a state convention and been rebuffed. These same leaders who support a state constitutional convention oppose an Article V Convention. The reason for this is because while these leaders trust Californians not to wreck their state constitution, they do not believe that people in Oregon, or Michigan or New York or Alabama and so on might not wreck the national constitution if a convention is called. Yet of course when asked, these leaders say they know people in California would not do so. This, I believe, will be overcome when California, Alabama, New York, Pennsylvania and several other states as well as nations all hold conventions about the same time, 2010 or so. They will all be peaceful and will accomplish goals of improving those governments they are assigned to address and in this sense you are entirely correct, a convention in California will serve to prove to the nation one can be held nationally. In that, a California convention, as wellas other such conventions, not because of what it does to the state constitution, but that the fact it is peaceful and goes about its business thus showing conventions are a safe method of change, is vital to the case of a national convention. I trust we agree on this point.
I must correct one statement you made. We have never said that the 700 conventions all rewrote their constitutions. All we have ever said is that they have been held and none of the alleged dangers attributed by the opponents to an Article V Convention have occurred at a single one nor in the some 300 conventions held worldwide. In short, this volume has been discussed for this fact and this fact alone. To my knowledge the spcifics of each convention in that number has never been discussed because our point is to prove conventions are a safe method whereby amendments or changes (depending on the law that creates them) can come about. In many states full changes in the constitution are permitted; Article V only permits amendments.
There is more and more discussion by people on the Internet and in the media on an Article V Convention not even connected with FOAVC. This trend will continue because the national government and its actions are not likely to change and people have seen over long enough a period of time that they are not, to come to realize a different solution is required that simply electing a new set of clones.
I hope you continue to support both your state convention as well as an Article V Convention.
Posted By: john de herrera
Date: 2009-12-06 18:19:30
bill, don't if you guys want it, but i had created the "Friends of the Article V Convention" facebbook page some time back and am happy to turn it over to you guys. have byron contact me if so. again thanks for all your work in this endeavor.
@Bill: A few more comments. That's all well and good if what you are intending to do is clarify, but previously, I can see no errors made except one contextual error regarding the 700 conventions you cite were made to address any changes to state constitutions.
I am impressed with how much you have researched the legal backing, but that it is still lackluster.
First of all, the pressure for a convention to propose amendments in the 1980's was for a particular amendment, a balanced budget amendment. Public record now shows that goal was achieved. Simply put, enough states applied for a balanced budget amendment to cause a convention call on that issue alone.
And this is exactly what I said.
It is the opinion officially and formally of the Supreme Court of the United States. First, in numerous cases, the Supreme Court has ruled the Constitution cannot be vetoed. Therefore, when it states a convention must be called "on the application of two thirds of the state legislature" that is what it means.
I fail to see the part where this says that rescissions are not legally binding. What you are saying here is that the Constitution cannot be ignored, but not that States do not have the right to rescind their applications or calls for an Article V convention.
Being that Article V is a new legal frontier on its own with only a handful of related cases, including the two you cite. You need a water-tight, bulletproof case against all possible litigation and there is no direct precedent for calling a convention or even establishing the means to.
What I have insofar failed to find, anywhere, (unless you have a source) is a specific area that rules on the simultaneous threshold of two-thirds of the States. Granted, that any issued applications could be rescinded, and even that they would not be expirable, would of course not change an ambiguous statement that supports your argument. They would remain on the public record, but that does not mean they contribute to the threshold.
FOAVC does not lie.
And I do not believe you are lying, just that what has been construed thus far is drawn from an ambiguous, legally questionable and unprecedented terrain.
Nevertheless, it is curious that you misdirected your reply to my concerns. My point was not so much contesting that enough applications had been called, not even under what grounds those applications would be protected from being thrown out under a new Supreme Court ruling. No, I'm not so much concerned over the legal details as I am already showing you the benefit of the doubt on a few issues (mentioned above), but over the "how" that you intend to ramp up public pressure.
This is why I raised the California example in the first place. My qualifiers were that California is in a comparable position, granted, as a state, in a time of unprecedented referendum. An Article V is a referendum of the States, therefore an indirect referendum as I said before. California, the state, would use direct democracy to decide whether a constitutional convention should be held or not. You only restated as much and I am glad you agree with me in that respect.
But what I mean to address is how FOAVC could learn how current movements are proceeding because of the similarities in what both are trying to address. Nevermind that local reform groups may have strongly rebuked the idea, that is to be expected. And I was not suggesting that because the previous convention fervor was centered around an amendment, meant that FOAVC needed to have a similar amendment at its core.
It is unwise for advocacy groups such as yours to back specific policy, and I can see you are aware of that. But, similarly, as I have admitted above in making a semantical error regarding your issue of 700 state conventions, you make one of your own in defending FOAVC's neutrality.
Nothing I said could disagree with you at all. In fact, I am all for supporting FOAVC's neutrality on the issue of specific policy, but once again, I bring up the similarity of the current California movement- nonpartisan advocacy group, backing a convention to call for a constitutional revision (there is no rewriting of state constitutions- as you know, nullified and removed amendments are merely stricken through and not taken from the record), but advocating specific ground for a Constitutional convention to cover.
You may have noticed a recent op-ed you can read at Calbuzz discussing that a constitutional convention is a "form" solution, not a specific remedy at all. The reason being precisely because both the BAC and Repair California know the risks of associating themselves with specific policy reforms without any concrete backing. They have instead taken the tactical high ground in disarming fears of a runaway convention, by endorsing the concept of a limited Constitutional convention. (On the subject, this brings to mind another strategical weakness FOAVC has against it, which we will discuss shortly.) The proposed convention will be limited in the sense that it will address only four subjects of governance. Such a concept of a limited convention certainly works on a state level since whatever changes made to the state's Constitution cannot conflict with the national Constitution.
However, this brings us to our next point. As I have said, voter education is one thing: your goal, as I see it, and you have so far agreed, is one of informing voters that such a threshold (contested or not) of applications invoking Article V has been reached. Your second obstacle then is convincing voters that such a convention is still crucial.
This is where you will undoubtedly run into fears, such as those by the JBirch Society, questioning a convention hijacked by liberals, or vice'a'versa from leftist outlets. As I said, since this is an indirect process in getting Congress to call the convention, your steps will be two-fold.
Forget about the "peremptory" mumbo-jumbo for a second here. As you have said, FOAVC discourages States from sending new applications since Congress has so far flouted their responsilibity to call for a convention. How would this change without first convincing citizens that a Convention is necessary?
Just because such a convention is theoretically accounted for, by your numbers, has not led to Congress calling one. Which can only mean you have one other avenue and that is first convincing people, not just that a convention is legally overdue, but also why it is necessary and what it would actually do.
I can already tell you that this is where you're going to experience resistance. Since you're relying on voter pressure on Congress, you are essentially set back to step one as any other public interest group.
The Legislative Branch won't simply call a convention once you've told X many Americans that one is due, otherwise you could argue that any number would be suffice and Congress would have already arranged for one by now. Joe Schmoe may agree that a constitutional convention may be way-past its time, but until you can address his concerns, he will not choose to "kindly remind" his representatives of their duty, which is another way of doing nothing.
With an ambiguous legal basis as provided so far, coupled with your forced reliance on this indirect referendum, there can be no mistakes. I have reviewed several outright dismissals of a Convention, not on whether one should have been called for, but of the damage one could do. Is much of it fearmongering? Yes. And FOAVC, and others, I imagine, have answers.
Posted By: john de herrera
Date: 2009-12-07 23:56:27
adrian, excellent points. it's been my frustration with the foavc founders to address this problem. and in this audio/visual day and age, nothing short of an entertaining and informative documentary could create the political science which will coerce the call out of congress. while bill has provided the legal standing, and both he and joel have written persuasively, they still are not recognizing the need to Show instead of Tell.
I'm sorry you find my legal presentations lackluster. That is probably because I've only presented a sliver of the evidence in question. Before we continue, I suggest you take the time to read the following:
as well as FAQ 9.1 on our web site. You've made statements about applications and stated that there is little law regarding an Article V Convention. The opposite is quite true as the above material shows. Indeed, the law is well settled regarding almost all points of holding a convention.
As to the rest of what you stated, I simply have to point out that an Article V Convention is not like any state convention. The basic difference in sum is that the people decide whether a state constitutional convention is to be held as is the case in California. In the case of an Article V Convention however the states decide if and when a convention is held. Constitutionally Congress is mandated to call and, as admitted by the government, is in criminal violation of its oath of office if it doesn't call such a convention. Therefore the states make the decision when and if a convention is called, not the people.
The facts are irrefutable. The states have mandated there be a convention and it only remains to 1) compel Congress to do its constitutionally mandated duty and 2) hold a convention.
I agree entirely that the people must be informed about a convention but not based on the premise that you and others seem to hold, that there is a choice or decision by the people yet to be made on the matter. If that were true then it follows the provisions of the Constitution can be vetoed and the result of that direction is clearly obvious and dangerous. The Founders did not design the Constitution in this manner. Instead, what such presentation must deal with and what FOAVC is concentrating on is bringing first political pressure on Congress which means basically no more than a public, national confrontation with members of Congress who are using every means possible to avoid it and at the same time refuting and educating people that a convention is not a threat and instead having people begin to focus on thinking of any questions raised by opponents as challenges to be answered rather than excuses to allow the government to veto the Constitution. Frankly, we believe that once the issue becomes a general public issue and questions are asked of members of Congress what gives them the right to veto the Constitution and what other parts they plan on vetoing, they will call the convention as they are required to do. The result of refusing to do so is a criminal sentence.
I look forward to discussing matters with you further after you've read the above material.
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