Answers to Mrs. Schlafly's Twenty Questions About A Constitutional Convention

In a March 14, 2011 Eagle Forum blog, Phyllis Schlafly (or an unidentified person approved by Eagle Forum) posted a blog entitled “Twenty Questions About A Constitutional Convention.” The twenty questions concern the operational aspects of an Article V Convention. As usual, Eagle Forum and Mrs. Schlafly mislabel the convention as a “constitutional convention.” The implication, of course, is an Article V Convention will attempt to write a new constitution and remove all rights of American citizens. This myth is entire nonsense. The Constitution prohibits the convention from doing this. Enough said.

Eagle Forum has apparently begun a new tactic. Proclaiming in Question #20 the questions “CANNOT” be answered, the Eagle Forum blog states if there are no answers to the twenty questions, state legislators should not support a convention. The questions signal the Eagle Forum and its allies realize they are losing the battle over an Article V Convention call. As I have stated previously, the first stage of a convention is the “why” stage. In this stage, the states declare the political reasons for a convention by submitting sufficient applications to compel Congress to call a convention. The states have submitted over 700 applications, an average of one application from one state every four months since our nation’s founding. The states have clearly answered the “why” of a convention—that they see a clear need for amendments Congress refuses to consider. Having no other alternative, the states therefore have requested a convention call. As this provision is satisfied, clearly the first stage is irrevocably closed. 

The Eagle Forum’s change in tactics signals the Eagle Forum realizes it has lost the battle over the “why” of a convention. True, the Eagle Forum and its allies have lied to state legislators telling them of the “dangers” of a convention. Some legislators have swallowed the bilge. They have issued so-called “rescissions” of state applications. Nevertheless,Congress has never acted on a single rescission by either recognizing it or removing the application from the public record. This is because Congress cannot do so; Congress is peremptorily required to call a convention. Therefore, it has no authority to rescind any application—even if the state instructs Congress to do so. According to the Tenth Amendment, once the state submits an application to Congress, it becomes a federal record and therefore is beyond state control.Congress, not the state,must rescind the application but the Constitution does not permit Congress to do this. Article V contains no provision allowing Congress or the states to withdraw their decision for a convention call.  Thus, in so far as the “why” stage is concerned, the Eagle Forum and its allies have lost the battle. Public record shows the states have satisfied two-thirds requirement for a convention call and Eagle Forum efforts at so-called “rescissions” are completely unconstitutional and therefore invalid.

The Eagle Forum repeatedly states the Constitution be obeyed “as is.” If true, then under the terms of Article V, Congress must call a convention when the states apply for a convention call. That is the “as is” terms of the Constitution. To urge support of the Constitution “as is” then oppose obeying it “as is” is constitutional hypocrisy. Either the Constitutionisobeyed, “as is” or isnot obeyed“as is.” Demonstrating its schizophrenia Eagle Forum wants it both ways. This is impossible. Obviously, as demonstrated by its change in tactics, the Forum realizes it cannot win its battle to stop a convention by urging people do what the Forum states it opposes.

The next phase of the convention is the “how” phase. The “how” phase deals with the operational aspects of a convention. In obvious desperation, hoping that a convention can be thwarted by asserting there are no answers to the operational aspects of a convention, the Eagle Forum has now turned to a series of questions about convention operations it presumes are unanswerable. Thus by showing it is impossible to operate a convention, Eagle Forum obviously hopes to prevent a convention. In this effort, the Eagle Forum is joined by others such as Dr. Matt Spaulding of the Heritage Foundation who urge efforts to resolve questions about how a convention will be conducted are wasted effort because he is “dubious” about obeying the Constitution and thus holding a convention. Naturally, neither the Eagle Forum nor Dr. Spaulding will publicly admit the fact the states have submitted sufficient applications (over 700 applications from 49 states) to cause a convention call. If they published this fact in their statements, this forces people to choose whether to support the Constitution or follow the Eagle Forum and their allies in opposition to the Constitution. Only by keeping quiet regarding the facts about a convention can they hope to prevail.

This fact explains why these convention opponents never mention the facts about a convention call as is found the FOAVC website. The facts would have them branded as anti-constitutionalists; people who oppose the Constitution and urge others to do likewise. Turning against one’s form of government in any country is a difficult task especially in the case of Americans and the Constitution. To most Americans, overthrowing the Constitution turns their stomachs. However, it appears convention opponents such as Eagle Forum consume gallons of antacid.

A few days following publication of the blog, I notified Eagle Forum that I was in the process of writing this column with the answers to the questions. I stated I would post a link to the article on the blog. To date, my comment remains unpublished. More significantly, unlike in times past, there are no comments of support under the blog. In sum, people are ignoring their challenge. This can only means people realize the questions do have answers.

The Eagle Forum is prejudice to the point of risking destruction of this nation. The Forum states holding a convention will destroy this country. What if Eagle Forum is wrong? The Founders universally believed in the convention; otherwise they would not have put it in the Constitution. Even the Eagle Forum acknowledges the brilliance of the Founders in creating the Constitution (which, of course, includes the convention provision). What if the Founders in their brilliance are right and Eagle Forum in its prejudice is wrong? Can we afford to believe Eagle Forum especially when they base every objection on a lie or distorted information? Can we heed their advice when every question they say is unanswerable is answered? Can we afford the risk this nation’s fate on the prejudice of the Eagle Forum? Obviously not.

The twenty questions asked by the Forum are as follows:

  1. How would Delegates be selected or elected to a Constitutional Convention?
  2. What authority would be responsible for determining the number of Delegates from each state?
  3. What authority would be responsible for electing the Delegates to the convention?
  4. Would Delegates be selected based on Population, number of Registered Voters, or along Party lines?
  5. Would Delegates be selected based on race, ethnicity or gender?
  6. What authority would be responsible for organizing the convention, such as committee selection, committee chairs and members, etc.?
  7. How would the number of Delegates serving on any committee be selected and limited?
  8. How would the Chair of the Convention be selected or elected?
  9. What authority will establish the Rules of the Convention, such as setting a quorum, how to proceed if a state wishes to withdraw its delegation, etc?
  10. What authority would be responsible for selecting the venue for the Convention?
  11. Would proposed amendments require a two thirds majority vote for passage?
  12. How would the number of votes required to pass a Constitutional Amendment be determined?
  13. What would happen if the Con Con decided to write its own rules so that 2/3 of the states need not be present to get amendments passed?
  14. Could a state delegation be recalled by its legislature and its call for a convention be rescinded during the convention?
  15. Would non-Delegates be permitted inside the convention hall?
  16. Will demonstrators be allowed and/or controlled outside the convention hall?
  17. Would Congress decide to submit Con Con amendments for ratification to the state legislatures or to a state constitutional convention as permitted under Article V of the constitution?
  18. Where would the Convention be held?
  19. Who will fund this Convention?
  20. If these questions cannot be answered (and they CANNOT!), then why would any state legislator even consider voting for such an uncertain event as an Article V Constitutional Convention?

Answering a few key questions in the list in turn answers several others. Therefore, the answers below are not in numeric order. The first question answered therefore is Question #20. The fact is the questions asked can be answered is demonstrated below. The fact the questions are answerable proves the statement in the question, that the questions “CANNOT” be answered, false. Thus, according to Eagle Forum, if the questions CAN be answered, state legislators SHOULD consider voting for an Article V Convention because is NOT “an uncertain event.” Question #20 is therefore answered. Therefore, the Eagle Forum advocates state legislator(s) should support a convention. As to their advice of legislators not voting for an Article V Convention, the number of applications submitted by state legislators is well over 700. Irrefutably this fact proves state legislators ignore Eagle Forum’s advice.

A convention only requires a single set of operational answers to function if the answers are based on constitutional grounds. Wild assertions prefaced with the term, “imagine what will happen” as is always found in anti-convention Eagle Forum literature is insufficient here. To their credit however, for once the Eagle Forum does not ask imaginary questions. The Eagle Forum states rules to govern a convention are impossible to create. Once demonstrated rules are possible to create, or applicable rules already exist, imaginative speculation does not repudiate them. Stating something does not exist when it irrefutably does shows signs of lunacy. Even the Eagle Forum is aware of the danger of publicly wearing that mantle.

For most of the questions, a simple, straightforward response, “just like Congress” suffices. In fact, under the terms of the 14th Amendment, no other response is possible. The Supreme Court has repeatedly ruled citizens within a legal class require equality under the law. Convention delegates and members of Congress, as the only citizens empowered to propose amendments, form a legal class. Further, members of Congress and convention delegates represent citizens requiring equal treatment under the law. As matter of law then, as discussed in my newly released article, entitled, “Rebuttal to Amending the Constitution by Convention: A Complete View of the Founders’ Plan” delegates and members of Congress must be treated equally. Thus, if one part of the legal class suffers election, then election applies to the entire class. If a law regulates one part, the law also equally applies to the rest of the class.

This principle of equality answers several of the Forum’s questions. Question #3, for example, requires an answer the Eagle Forum should already know. The authority responsible for electing delegates to a convention is the authority of the people, just like Congress. This answers then answers questions 4 and 5. First, as is well known to anyone in this country, the days of election based on race, ethnicity or gender has long since passed in this country. Therefore, the answer is no such conditions have any place in the election of delegates. Numerous federal and state laws ensure this fact, just like Congress. As to Question #4, all members of Congress are elected based on population, not by number of registered voters and certainly not party lines. True, a majority of registered votersvotingfor a candidate ensures his election and true most candidates are members of one or the other party. Nevertheless, the basis of elections is population. Therefore, just like Congress, delegate election is based on population.

The election will be by election in House of Representative districts. The basis of this conclusion is constitutional qualifications of age, citizenship and habitation for a house seat are the lowest in the Constitution. To require a convention delegate to satisfy a higher standard than the lowest possible for a member of Congress is discrimination. Therefore, delegate election is based on the standards set for the House of Representatives. As such, election is based on population within the state; each state delegation contains a different number of individuals each representing a certain portion of population within that state.

However, when the state delegation arrives at the convention, that delegation must be equal with all other state delegations. Again, the principle of the 14th Amendment prevails. No state can be more equal than another state or more expressly, the citizens of any one state cannot enjoy more privilege or immunity than the citizens of any other state. Thus, under the terms of the Constitution, the voting power of each state must be equal. Hence, each state delegation receives a single vote. Each state delegation will vote among its membership to determine the outcome of that vote. In this manner therefore, representation for all citizens as well as states is equal at the convention. This response answers Question #2.

Questions 6, 7, 8 and part of 9 are answered by the fact that just like Congress, the convention has the constitutional as well as inherent right to determine its rules and select its officers. This fact, established in the Constitution for Congress, must equally apply to the Convention. Thus, the authority for delegate selection for committees, number of delegates in such committees, organization of the convention and choice of chair, is the convention itself. The authority to organize lies within the convention itself, just as is with Congress or for that matter, any organization at any level found anywhere in this nation. Whatever the organization, it has an inherent right to organize itself according to its own rules and procedures, which it has the right to establish. However, just like Congress, those rules are subject to the terms of the Constitution. As with most organizations, the convention will use Robert’s Rules of Order to begin the organization process. It will develop its own set of procedures from that origin.

Questions 9 and 14 contain references regarding a state withdrawing its delegation. There is no such authorization in the Constitution enabling the state to remove a member of Congress by recall. Removal of a member of Congress is either by resignation or election defeat. There is no recall of a member of Congress. The same rule applies to delegates to a convention; no recall. The same principle applies to the convention call. The states have no authority in the Constitution to rescind their applications and certainly none after Congress has issued its call to rescind their applications and thus attempt to prevent the convention. If states want to prevent a convention by means of application, they simply do not apply in the first place.

As to setting quorum (referred to in Question #9), the word itself defines the term of quorum for the convention. The definition of a quorum is one half plus one of the total voting members present to conduct business. In this case, therefore, twenty-six state delegations (with each state delegation having quorum within it) must be present for the convention to conduct its business. Just as Congress is under a constitutional quorum requirement in order to conduct business, the 14th Amendment mandates the same restriction on the convention.

Questions 10 and 18 deal with venue, a term usually associated with judicial proceedings, which a convention clearly is not. The word venue refers to the location of a court, or, in this case, the location of the convention. The Constitution is clear on this point. It is the expressed responsibility of Congress to issue a convention call. A “call” is defined as establishing a “time and a place” for a meeting. Congress did this when it called the 1787 Federal Convention. The call specified the convention be held in Philadelphia beginning in May 1787. Under the terms of the Constitution, Congress retains this power and responsibility. The power of call however is extremely limited. Setting the time and place of a meeting does not grant Congress the right to set the agenda of the convention, appoint its officers, veto its amendment proposals or attempt other controls proposed in congressional legislation of the past. It expressly means Congress issues a call naming the time and place for the convention and nothing else.

Questions 10, 11, 12 and 13 deal with votes by the convention for proposed amendments. The answer to Question #11 is obvious. Article V mandates that proposal of amendment for Congress is by two-thirds vote (assuming a quorum of membership in each house). The same must apply to a convention under the principle of the 14th Amendment. Thus, two-thirds of the state delegations present (assuming a quorum) must propose the amendment. Therefore the answer is, yes a proposed amendment must receive two-thirds vote (assuming a quorum) from the convention in order to be proposed. This answer in turn answers questions 12 and 13.

The answer to Question #12 is just like Congress, the use of simple arithmetic and fraction determines the number of votes required to pass an amendment. Assuming all state delegations are present, the required vote is 34 state delegations. However, just like Congress, the Supreme Court has ruled that not all members of Congress must be present in order to propose amendment. The courts have expressly and repeatedly ruled Congress operates under a quorum rule. Therefore, if a quorum is present, the number of members required to pass a proposed amendment is two-thirds of that quorum or two-thirds of total membership present assuming the number of members present is more than a quorum but less than full membership in attendance.

Just like Congress, therefore, a convention could constitutionally pass an amendment with as few as 19 state delegations in attendance, 26 being a quorum and two-thirds of that being 19. However, just like Congress, this is nearly impossible both politically and constitutionally. Just like Congress, absent state delegations can be compelled to attend the convention. Thus, amendment opponents would compel all state delegations to attend any vote and, just like Congress, the opposition would quickly come to the floor making such a political stunt impossible. The answer to Question #13 is the Supreme Court has repeatedly ruled a house of Congress can pass an amendment provided a quorum exists in the house. The convention, just like Congress, is bound to obey that ruling.

Questions 15 and 16 concern keeping order at a convention. Interestingly, no one outside of Eagle Forum has ever raised the question of protests at the convention. In sum, just like Congress and for that matter, as is true of any large public gathering, law enforcement will do its job; keep the peace. Obviously, the extent of this requirement depends on the actions of those requiring regulation, meaning if the crowd grows unruly the police will act as they have countless times to maintain order. Further, as a convention is a federal function, the President has authority to provide such protection and security as warranted permitting the convention to go about its constitutional task. How well the people behave and who might cause problems answers Question #15. If people behave, the convention permits spectators, just like Congress. If not, just like Congress, spectators are barred.

Question #19 concerns convention funding—specifically who will fund a convention. However, before answering the question of who will fund a convention, first requires answering what funding needs exist. Clearly, the needs determine the costs. If the needs are minimal, then so are costs. The amount of costs greatly effect the source of funding. This warrants an examination of the possible types of convention and associated costs. Only then can the issue of who funds a convention be reasonably determined.

Questions 15 and 16 clearly indicate Eagle Forum envisions a large body of people physically located inside a convention hall surrounded by large numbers of press and public. They obviously anticipate protests, possibly to the level of riot. Inside the hall, as evidenced by the referenced comment following, all that exists is dirty, low politics. In short, a typical political convention witnessed by this nation every four years, according to Eagle Forum.

Based on this presumption, Phyllis Schlafly has written of the “dangers” of political conventions saying, “Anyone who has attended a national political convention knows very well that the guy with the gavel exercises ruthless power. I’ve attended 15 Republican National Conventions plus many other national, state and district political conventions, and I’ve seen every kind of high-handed tactic and rules broken with the bang of the gavel, including cutting off mikes, recognizing only pre-chosen delegates, expelling unwanted delegates, cheating on credentials and rules, fixing the voting machines, etc., etc.” One must wonder if Mrs. Schlafly is so opposed to political conventions, why has she attended 15 of them in her life. Is not the definition of insanity doing something repeatedly and expecting a different result?

Her assumption, based on her well-known opposition to a convention, is that all conventions are identical. Therefore, according to Mrs. Schalfly, an Article V Convention is identical to a political convention. Each will have massive demonstrations, noisy crowds, confusion and tumult. This form of democracy, which began with the election of Andrew Jackson, strikes fear in the heart of Phyllis Schlafly. Interestingly, Mrs. Schlafly fails to mention conventions have produced political leaders as Abraham Lincoln, John F. Kennedy, both Roosevelts, Harry Truman and many others. Given the contributions these men have made to our nation, it appears we benefit from conventions Phyllis Schlafly says we should fear.

In her analogous assumption of all convention being alike, Phyllis Schlafly fails to acknowledge a basic constitutional fact. An Article V Convention is not a political convention. The purpose of a political convention is to nominate a candidate, whose campaign is future based, i.e., what will be done in the future. The purpose of an Article V Convention is to discuss ideas, proposals and concepts and to implement them, i.e., what action occurs in the present. Thus, the political convention makes decisions based on speculation, which is most prone to emotionalism, i.e., what peoplewantto happen rather than whatwillhappen. Candidates at conventions make promises of emotion, promising outcomes regarding future events with no guarantee whatsoever those events will transpire as promised. The candidate has no way to ensure he can affect future events as promised. So, he is forced to play on emotion; making peoplebelievehe can affect the future as promised. Thus, the bases of political convention nominations are eventsafterthe convention concludes. Only after the convention concludes does the candidate become an office holderifelected to that position. Nothing during the existence of the political convention can absolutely guarantee that. It is speculation.

The Article V Convention on the other hand, deals with the present; the here and now. Unlike a political convention, the Article V Convention deals expressly and exclusively with the reality of amendment proposals, proposals that must bewrittenbeforethe convention concludes. In order to propose an amendment, the convention must write the amendment during its existence. Once written the amendment text cannot be altered by Congress or the states. Congress can only decide on the method of ratification; the states can only vote up or down on the proposed amendment. Thus, the convention is awarebeforeadjournment of the circumstances of its proposal. No uncertainty exists, as is the case with a political convention. While it is true a convention cannot predict future events, nevertheless, the convention knows its proposal is what will be in the Constitution, assuming ratification. There is no speculation in this. This certainty affects all events at the convention, from debate to possible passage.

The very act of written amendment certainty coupled with the overwhelming numbers necessary to actually propose an amendment from the convention, not to mention the serious gravity associated with any amendment of the convention will cause serious debate not ruckus protest at the convention. Congress serves as the best example of this. If Phyllis Schalfly were correct regarding the amendment procedure then to prove her point she would not cite the example of a political convention, but instead the riot over the passage of the 16th Amendment, or the brawls in Congress during 25th Amendment passage. None of this, of course, ever happened explaining why she does not cite such examples. They do not exist. True, there are records of strenuous civil debate regarding proposed amendments. The debates were in an atmosphere of decorum and order. There is nothing to suggest a convention will be any different.

In the discussion of convention costs this certainty means unlike a political convention, the convention is limited in its actions and its costs. All a convention can do is intake information, process it and, assuming approval in vote, propose amendments. In short, the convention will do no more than exchange information from the public to its members, exchange that information between its members and ultimately export that information in the form of proposed amendments. All necessary information is in writing. Given the requirement of thoughtful, objective thinking required to decide such a serious issue as amendment of the Constitution, the exclusive use of writing, more prone to objective rather than subjective interpretation presents the convention a distinct advantage and an additional check in its system.

It is one thing to fantasize in a political column as Phyllis Schlafly has in the past that radical proposals, such as repeal of all constitutional rights, will dominate the convention. It is quite another to expect in the real world a delegate will actually write such an amendment proposal, i.e., repeal of all constitutional rights currently enjoyed by Americans. It is even more absurd to believe any sane American will ratify, let alone favor, by two-thirds vote in a convention such a proposal. When dealing with reality rather than fantasy, Mrs. Schlafly’s proposition is ludicrous.

The compulsory writing of amendment proposals by delegates creates yet another barrier in the process which Mrs. Schlafly ignores in her condemnations. During the election campaign of delegates, the electorate will inquire of prospective delegates what amendment proposals the candidate favors. The convention deals only amendment. Therefore, this is a certainty. The electorate will require written demonstration of what the candidate favors and judge his work. The election will actually be a referendum on the various amendment proposals with delegates selected based on support or opposition to those proposals. Unquestionably, as is true in all elections, those with the more radical propositions such as Mrs. Schalfly insists will be the centerpiece of consideration at a convention, will be rejected by the electorate. Thus, the electorate will eliminate radical proposals and their proponents even before the convention occurs. Only those proposals with the most popular support will survive the process. Not one state has ever proposed eliminating a single right currently enjoyed by Americans in any application. In fact, it is the exact opposite. The states seek toincreasethe rights of the American people, that is, give them more rights than they currently enjoy in their applications.

This is not to say amendment writing strip delegates of passion, prejudice or agenda. It means writing causes the mind to use reasoning rather than emotion in interpreting it. This is why a speaker before a large crowd may incite a riot but there are few, if any, examples of people in a library, even if reading the same material as used by the speaker, suddenly jumping up collectively and starting to riot.

Because a convention requires no more than exchange of written information, a convention can be virtual rather than physical. The cost savings are obvious and significant. The virtual convention also presents political advantages. The delegates can remain at residence within the districts that elected them. This makes them more available to their constituents. Thanks to the Internet, delegates could live lives more close to normal than the intrusion of a physical convention permits. A virtual convention permits constituents to keep a more stringent eye on their representative than a physical convention affords them. The virtual convention allows many in the community who cannot afford to seek office due to the loss of income associated with attending a physical convention to campaign, as they are not deprived of this income during a virtual convention. For the delegate and constituent, wherever there is a computer and Internet connection, there is the convention. Finally, the virtual convention affords a complete accuracy of convention events thus giving the public full disclosure of the events.

The choice of what kind of convention, physical versus virtual, therefore plays an important role in determination of costs. The costs of a virtual convention are minimal. FOAVC, for example, established a virtual convention on our site. The cost to our organization was next to nothing as we already had a site in existence. Even if it was determined the convention required a new site, the cost is low when compared to the millions required for a physical convention. A physical convention requires expense for security, transportation, housing, food, sanitation, rent, utilities, communications and employees to name a few, none of which exist or are much lower for a virtual convention.

The answer to the question of who funds a convention requires answering what kind of convention there is. The costs of a virtual convention are minimal. The costs in question can be borne by the delegates themselves or by use of Internet advertising posted on the site. On the other hand, a physical convention would require an investment certainly in the millions.

Who would fund the multi-millions needed for a physical convention? The first obvious answer is Congress. After this are the states, public donations and finally private funding by one or more wealthy individuals. This last possibility can be dispensed with immediately. The temptation of a single individual or individuals gaining control of a convention through private funding not accountable to public inspection or review makes this alternative unacceptable. Likewise, public donations have a place in our society, but dependence on them for funding a convention is impractical. There is no guarantee sufficient monies can be raised to cover the millions in physical convention costs. This unreliability makes this alternative unworthy of further consideration.

This leaves state or congressional funding. The latter is impractical for two reasons. First, the courts have ruled Congress is free insert whatever terms it wishes in its appropriations. The political controls Congress can impose through its control of appropriations require no further elaboration. Second, the courts have ruled the president can have nothing to do with the amendatory process. As the Constitution mandates the president must approve any appropriation bill, this means the president is involved in the amendment process. So much so, that if he desired, the president can simply veto the appropriation bill and prevent convention entirely for lack of funding. Even if Congress approved a blind grant, giving the convention a lump sum of several millions and allowed that convention to spend the money as it desired with the obvious provisions of proper accounting of expenditures and return of unspent funds, the bill is still be subject to presidential veto. Thus, congressional funding is not an option.

This leaves equal state funding for the convention. Assuming all state legislatures were amiable, the cost per state is not that high. Based on the costs of other similar events a physical convention stripped of all frills will cost 20 to 40 million dollars. This cost, split 50 ways, calculates to less than one million dollars a state. In comparison, virtual convention costs are measured in the thousands of dollars rather than the millions. It is easily the more attractive economic alternative.

Therefore, the answer to Question #19 is, depending on what kind of convention is held, physical or virtual, the delegates themselves or the states will fund it.

Finally is the answer to Question #17. Under the Constitution, the decision of whether to submit proposed amendments to either state legislatures or state conventions lies solely with Congress. Therefore, the answer to the question is yes, Congress will decide to submit the proposed amendments from a convention to the state legislatures or state conventions as prescribed by Article V. The terms for ratification whether proposed by Congress or convention are identical in either case; three-fourths approval from the states. Thus, a simple reading of Article V answers this question.

This completes answers to all questions from the Eagle Forum. All questions have been answered either by use of well-grounded constitutional principles or court decisions. Therefore, under the term expressed the questions, as the questions are answered, all state legislators, according to the Eagle Forum, should support an Article V Convention.

Latest posts by Bill Walker (see all)

The views expressed in this article belong to the author/contributor and do not necessarily reflect the views of the Nolan Chart or its ownership


  1. says

    “It will resemble Congress”
    If so, then why go through all this complexity and uncertainty just to get another group like Congress, but with even less responsibility to the people because – although the delegate’s election/appointment will predictably be purchased by the same sources of money that buys a seat in Congress – they will not be subject to re-election fears?

    First, on the 20 questions, your 14th Amendment argument is not persuasive as a legal matter (including, for starters, because the 14th amendment says no “person” shall be denied equal protection – not no “delegate” or Congress person; an Article I house of Congress can freely change its own rules whenever it wants without respect to even what the other Article I house does, let alone an Article V convention; and separation of powers would require Congress to determine for itself what equal protection requires). The concept that the Constitution will determine the answers to these 20 questions only serves to show, not the answers to those questions, but that the Supreme Court would decide the rules that govern a convention. Now if you like what the Supreme Court does, then that should make you happy. Although that would raise the question, If you like what the Supreme Court does – why not just let them continue to change the Constitution they way they are now? But for those of us who think it is the Supreme Court that has undermined our Constitution, our unmatched heritage that was written by the best educated most experienced group of successful revolutionaries ever, the idea of giving the current plutocratic majority of the Supreme Court additional powers to determine the rules of the game for rewriting the Constitution, like they have usurped the power from Congress to rewrite the rules of the game for elections, is not a happy thought.

    Second you need to be clear what it is that you think Congress cannot do right now in terms of changing policies under our current Constitution, which after all is primarily a set of rules to frustrate and prevent tyranny, with a series of amendments that mainly extended the “consent of the governed” to include almost universal suffrage and democratic citizenship?

    What exactly is it that you want to accomplish that cannot be accomplished within this framework of the Constitution as it now exists, one of the most brilliant and enduring political documents ever produced, provided Congress does its job as described in the current Constitution? What makes you think that delegates elected by the current dumbed-down population, subjected to a free-for-all pimped-out corporate propaganda system established by the Supreme Court, will be able to write a better Constitution?

    It is very likely that your problems with the current Constitution are actually problems with the way the Supreme Court has interpreted the Constitution, and not with the text of the charter itself.

    Since the delegates to a convention “will resemble Congress” would it not be more direct to use the system the Constitution created to enable “We the People” to make changes – which would be to simply force Congress to exercise its power to make changes, which includes power over the jurisdiction of the Supreme Court – rather than go through this complex round-about process of doing the same thing?

    Just to recount the complexity of the convention process: Changes made through an Article V convention involves at least getting 2/3 of the states to all agree on calling a convention on the same subject, or for a general revision of the Constitution; getting Congress to agree the States have done that sufficiently to warrant calling a convention, which may include resolving at least the 20 questions (which will not be resolved according to the reasoning of this website, but by Congress, state legislatures, and most likely – in the current climate of political thought governed by the judicial supremacist ideology – finally, by the Supreme Court). The delegates need be selected within the current corrupt electoral system, or by corrupted legislatures. Then a convention under some set of rules would be held, and report out its results. Then the results have to be approved by 3/4 of state legislatures nearly all corrupted by the current electoral system established by the Supreme Court to serve the 1%. Then the new Constitution would need to be implemented through legislation, since hardly any Constitutional provision is self-executing or detailed enough to be able to be enforced in specific cases, at least not without enormous judicial interpretation that amounts to legislating from the bench. Then the legislation itself will need to be enforced in whatever kind of judiciary the new Constitution provides, under interpretations of a new Constitutional text that has never been interpreted before and so far less certain in meaning than interpretations under our current Constitution which has over 200 years of analysis and exegesis behind it. Alternatively judicial review could be expressly withheld from the judiciary – in which case, what is the importance of the Constitution in the first place?

    By contrast, Congress – reconstructed by an informed electorate to do precisely what that electorate wants subject to being kicked out at the next election in two years– only needs to enact by majority vote one single omnibus bill to correct most of the problems you probably attribute wrongly to the Constitution.

    Much of this complexity in trying to achieve any concrete desired change in the current Constitution by way of a Convention is due to the fact that the Article V Convention was not designed as a means for “We the People” to get around Congress or express views that Congress does not seem to be hearing by means of elections.

    We the People have no role in Article V, though we do in elections for Congress, a right protected under the 10th Amendment. Article V empowers the States not the People. It is designed for the situation where there is such a division between most of the States on the one hand and the government of the United States on the other that they would need a peaceful means of resolving those differences. The framers did that by allowing a super-majority of the States to redesign the constitutional framework defining the United States government and its relationship to the states, without excluding Congress entirely from the process. Because there has never been such a situation in American history, the Article V convention device has never been needed by a super-majority of the States, and so it has never been used.

    Current political problems with our democracy, whatever you may think they are, are similarly not a matter of a division between a super-majority of the States on the one hand and the United States on the other. This is partly because the same Koch brothers and their like which have bought Congress have also bought most of the state legislatures as well with similar results. Are there any political problems you seek to cure by a convention that are not the result of the erosion of democracy by money in politics?

    What precisely is it the country is going to gain by going through this lengthy, inappropriate and uncertain process of a convention? Trying to use Article V as a means to resolve the demonstrably wide divide between We the People and our governments at all levels is to simply use the the wrong tool that the Constitution did not design for that purpose. The right tool is the vote – the irreducible right of almost every adult citizen of a government whose legitimacy depends upon the “consent of the governed.” However the people have failed to understand that tool sufficiently to organize themselves to use it effectively to re-enfranchise themselves after the Supreme Court mandated, in effect, that “candidates have the constitutional right to purchase their election” as Justice “Whizzer” White suggested in his dissent from the 1976 Buckley v Valeo decision.

    What is it precisely that you do not like about a Constitution originally designed to prevent tyranny, and which was then amended to spread the benefits of freedom from tyranny to almost every citizen over 18, that is not in fact due to the corruption of the institutions it created? If the problem is due to corruption, that corruption can be directly attributed to the problem Justice White identified in 1976 and which has rotted away our former democracy. The complete solution to that problem is found in the Constitution itself, and it involves a simple law stripping the jurisdiction from the Supreme Court to legislate and judge the manner of holding elections, a power that was deliberately given to Congress and not the Court by the brilliant founders who wrote the Constitution specifically to provide a solution to every problem a republic might face in resisting the tyranny of the 1%.

    The original founders represented about 10% of the people that would eventually be enfranchised by the 1970’s by amendments to the Constitution and laws enforcing them. Under the reign of the 1% the country has become since 1976 about 1/10th as democratic as the undemocratic republic they founded. Only 17% of voters think government has the consent of the governed, fewer than consented to King George’s reign at the time of the Revolution. The founders wrote a Constitution to prevent this from happening Our job is to put this Constitution to use before, if ever, we start tinkering with changing it under the false premise that the Constitution must be the cause if the political problem is big enough. When the problem actually lies elsewhere, and the solution is already to be found in the current Constitution, no change of the Constitution can or will solve it.

Leave a Reply

Your email address will not be published. Required fields are marked *