Sunday, February 05, 2017

Near Future News on Article V Convention

April 2017: After a giant struggle, Arkansas becomes one of eleven states to pass the "Convention of States" language to petition Congress to call for an article V Convention to propose amendments to the Constitution. The battle was intense, with advocates citing a quote from James Madison that said article V could be used to reign in the federal government. Critics countered that Madison oversold article V in an effort to convince states to ratify the original document, noting that Madison also claimed that the constitution would result in a central government with powers that are "few and defined" while the powers left to the states were supposed to be "numerous and open-ended".

Legislators discounted that argument because opponents said the real thing that needed to change was the two-party system, not the constitution. Legislators and backers hope that changing the Constitution, rather than their own system, will solve our national problems.

August 2018: Even though backers of the Convention of States proposal were still far short of the 38 states required, Congress elects to issue a call to convention based on both COS petitions and the petitions from left-leaning states which call for amendments relating to gender equality, and corporate donations to politicians. That is, they agree to write a call for a convention to consider the issues mentioned in all petitions.

Many who initially backed the COS proposal are shocked, since they were assured that identical petitions were required from 38 states in order to have a convention, and that topics from the convention would be strictly limited to what was in the petition to Congress to call the convention. Some of them file lawsuits to that effect, but COS officials are so excited to actually have a convention where their ideas are on the table that most of them do not participate in the suit. There is a split within the movement as some believe that the Congress cannot violate the state laws and resolutions that "bind" congress to conduct the process in a pre-determined fashion.

November 2018: The courts rule that state laws are not binding on Congress. They cite the federal supremacy clause of the constitution, the fact that article V states that the call to convention is written by congress, and judicial precedent in U.S. Term Limits vs. Thornton. In that case Arkansas passed a state constitutional amendment to term limit all public officials. The courts ruled that the measure could only be applied to state officials, and that congress could only be limited by the federal constitution. In the same way, the call to an article V convention could not be limited by state officials, but only Congress and the federal constitution.

In addition, they throw out the suit that claimed that all petitions must have the same language before Congress can call the convention. The courts rule that congress is not bound to call a convention unless all petitions are exactly the same but neither are they prohibited from calling one based on differing language in petitions from the required number of states. The actual article puts no such restrictions on congress.

Many former supporters of an article V convention are shocked that all the proclamations, pronouncements, safe-guards and legislation from the states to keep the subject matter of a convention defined were swept aside so easily. The formal COS organization takes the position that citizens should lobby congress to match the subject and format of their proposal as closely as possible. Frantic scurrying goes on as grassroots groups begin to lobby Congress- the very body they had hoped to reign in with an article V convention. They are overwhelmed by the intact lobbying apparatus in Washington who all have ideas about how the most powerful convention in over 200 years should be staffed, organized, and directed. Donations to Congress skyrocket as groups vie for influence.

January 2019: Congress issues a call to convention. It appears to have positives and negatives from a COS perspective. It does contain the language they want regarding convention subject matter, but also contains language desired by the left, such as language asking for an amendment making "gender equality a fundamental human right of the highest order".

Even more upsetting, Congress lays out very specific procedures as to how delegates from the states are to be selected. The legislatures are to present lists of names, up to twenty names for each member of the federal delegation the state would have. The Governor would pick from among the names submitted by the legislature. COS in Arkansas pushes hard to fill the list of 120 names with people sympathetic to their cause, but every other group in the state is pushing too. This time, donations flow to state legislators as their campaign coffers are stuffed full of cash from groups hoping to get their names on the list.

Even though the COS people in Arkansas do a solid job of getting 27 of their people on the list, when the list goes to the Governor  he picks twelve reliable establishment names off the list of 120 names- six names off the list to serve as the delegation for Arkansas, and six alternates. Only one COS affiliated person makes it as an alternate, and he never gets to cast a vote at the convention.

Never in the history of the United States was so much potential power assembled together in one place, and that place was Philadelphia PA, as determined by Congress. Having it there made great optics, enhanced the idea that it was not from Washington even though the ranks of the delegates were staffed with reliable establishment men, women, and various other genders. The military has to form a perimeter around the convention hall as multitudes of Americans collect to demand that their agenda be heard. But they never make it inside the hall. Tensions around the county simmer,

March 2019: The convention issues amendments for ratification. To the relief and shock of many, the language is somewhat along the lines of what COS supporters hoped for. The language on the taxation amendment is right out of Mark Levin's "The Liberty Amendments". The amendment on a balanced budget is very similar in language to that pushed by "Compact For America". There is also an amendment reigning in judicial tyranny, and one for congressional term limits. The bad news is the Gender Equality amendment. It empowers federal intrusion into churches, homes, businesses, child rearing, and even overseas in the name of gender "equality". There is also a ban on corporate contributions to political candidates, favored mostly but not exclusively by the left.

COS had taken a lot of heat when the doors were closed and all of the rules were being made in defiance of all of their alleged 'safe-guards.' They could hardly believe their good fortune. Even though they had lost control of the process four of the proposed amendments were something they could have written themselves! Now they were able to return to the offensive. They rallied their forces to urge passage of the "good amendments" and defeat the bad. They crowed that even though the doors to the convention hall had been closed, the establishment knew they had to bow at last to the people's concerns.

May 2019: Then came the bombshell: Congress chooses ratification by state conventions and in their ratification bill directed that the process for selecting convention delegates was the same as that for selecting delegates to the national convention, except that there would be three delegates for each seat in the federal legislature, with a like number of alternates. So for Arkansas there were to be 18 delegates and 18 alternate seats in the state ratifying convention. Some expressed surprise at the small number of delegates and sued over that. Others sued because Congress was detailing the process for "state" ratifying conventions. Their position was that Congress could not do anything but tell the states to have a ratifying convention, all of the particulars as to those conventions should be left wholly to the states. In fact, multiple suits were filed on those grounds.

Most of them never saw the light of day. The courts ruled that most of the plaintiffs did not have "standing" to sue because they were not state government officials. Finally, some rouge legislators filed the same suit. Unfortunately the precedent had already been set. Courts had already ruled that Congress could set a deadline for the ratifying conventions to complete ratification. Absent any constitutional restraint on congress, the court ruled that article V's language authorizing congress to determine the mode of ratification implied that congress could set a 'reasonable and uniform" standard for selecting delegates for such conventions.

In making this decision the courts were not making any departure from precedent.  The courts had already determined that Congress could set reasonable time-limits for the states to ratify the amendments in Dillon vs. Gloss and confirmed that in Coleman vs. Miller. Congress would determine the parameters for delegates under article V because it said in article V that they would "propose" the "mode" of ratification, while the phrase "Convention of States" did not even appear in article V. It was a marketing slogan rather than a feature of the actual text of article V of the constitution.

COS was in a quandary. On the one hand, it seemed like a lot went right, even if things had not gone as planned. The overwhelming majority of its supporters were enthusiastic about four of the amendments, but very much against the other two. But its bigger problem was that it no matter how its members felt, they would not be deciding anything. Sure it lobbied to get its supporters put on the list of names handed to the Governors, but the Governors just crossed off those names and selected safe establishment types for the few slots available. But its choices now were to oppose ratifying conventions who were considering language that was mostly what they wanted, or jump in front and try to take credit for a bandwagon they did not build. They chose to give themselves credit for the language of the end process rather than blame for all of their errors about the technical details of how the process unfolded.

Even though a land-slide majority of Americans favored at least one of the amendments there was no agreement on which one- no one amendment had the level of support to meet the high bar for ratification. And of course, the left leaning states favored the last two amendments and hated the first four. Conservative states tended to be the opposite. A few states were wary of the whole process. Some were willing to vote down a popular amendment unless a less popular amendment was included. If it had been a question of a majority vote on each amendment in each state, none of the amendments would have cleared the very high hurdle of the 3/4ths majority needed to pass.

July 2019 : The state conventions all met on the same day: the 4th of July 2019. The entire nation waited in anticipation, though news reports had emphasized the divisions in the nation and how high the 3/4ths hurdle was. But to the shock and surprise of the nation, one by one the delegations came out from behind the closed doors and announced the same results: They had chosen to ratify all six amendments, provided that 3/4ths of the other states did the same. Apparently, there was communication and collusion among the state delegations, even if there had not been much between the state delegations and the citizens of the states. Some state delegations wanted some amendments, while others wanted different ones. The only way to get a 3/4ths majority was to make a deal giving each side the amendments they wanted and execute it quickly, giving everybody some of what they wanted even if it came with some unwanted extras.

Hours later, the Secretary of State signed off and just like that, the constitution was different. COS declared victory because, miraculously, most of the amendments were what they wanted. It was true that every step of the way they their much vaunted safe-guards were easily by-passed, but they simply kept pointing to the end result.


The leftist amendment about Gender Equality was the PC-totalitarian nightmare you might imagine that it would be- if you have an enormous and ghastly imagination. Lots of people went to prison for things that they had had every right to do and say before. The rest of America kowtowed until they learned to love it and believe it was their own idea.

The left-leaning but more populist amendment regarding no corporate contributions to candidates did not do much of anything. Just like a similar state amendment in Arkansas, it had a loophole a mile wide in that corporations could still give to PACs. The big corporations had their lobbies set up several PACS each and just funneled the money through them. Smaller companies who could not afford all of that were shut out even more.

The so-called "Balanced Budget Amendment" that used similar language to the "Compact For America" proposal turned out to really be a proposal to go to a "National Sales Tax".  At the next budget crisis they changed from income tax to national sales tax since that raising those did not require a super majority from anyone. Since global corporations had made trillions overseas, switching to a sales tax allowed them to bring their profits back into America tax free. The middle class however, saw an increased tax burden, since the big corporations were paying less. The IRS was not eliminated, it was just transformed into the ISS, the Internal Spending Service. Every favor or trade among friends and family suddenly became the business of Washington and an attempt to "evade sales taxes".

That change made the "Income Tax Amendment" from Mark Levine's "Liberty Amendments" a moot point. But even before then Americans were shocked to realize that that amendment was a trap. It limited taxes for any American to no more than 15% of gross income, but only the top ten percent of Americans even paid more than that to begin with, and only the top five percent paid significantly over that. In other words, the amendment mandated a large tax decrease for "them" at the expense of everyone else. And since the Middle Class was the only one with money to take the burden fell hardest on them as described here.

You might say that Levine's tax amendment forbade Congress to "institute" a national sales tax, so how did Congress pass it? Well, Congress passed legislation saying that the states would start collecting so much sales tax for the federal government using their existing taxation infrastructure, therefore Congress did not "institute" the sales tax but rather piggy-backed on existing state institutions. The last few states without a sales tax would not get federal funding of any sort until they did the same.

Naturally this double talk resulted in multiple law-suits and since the language was fairly plain the courts ruled in favor of the plaintiffs- the tax plan from Congress was in violation of one of the new amendments. Congress though, was up against a budgetary crisis. They utilized yet another amendment passed on that fateful day- one that said they could abrogate any court ruling with a 2/3rds majority vote. To the dismay of the public, Congress increasingly used the power given to them by that amendment in ways which advanced their self-interest, exactly as they had cast all of their other votes for decades. People could no longer count on the courts to protect them from increasing police-state tactics out of Washington. Anytime the courts ruled against a practice Congress favored, even if corrupt, Congress simply used its new power to overturn the ruling.

And that brings us to the last amendment- term limits. Term limits worked pretty well in the Arkansas legislature, where the system could not find enough insiders to fill all of those new openings, but in a nation of 320 million people for only about 100 empty seats every election, the system was able to replace one empty suit with another. And they were indeed empty suits. The Legislature was actually significantly weakened compared to the bureaucracy, which could always "wait out" the occasional legislator who tried to do some good. By the time they really learned the ropes, they were out of terms!

Since they knew they could not make a career out of legislating, the temptation to sell out to some special interest who would take care of them after their time was up was stronger than ever. It turned out that blanket term-limits was no substitute for a diligent population putting good men and women in the legislature and keeping them there where they could be a real counter-weight to Executive and Judicial abuse.

 A dejected conservative movement had learned some valuable lessons about trying to reform a bad system using more rules instead of going around it to send in better people. But by then, it was too late.


Blogger PatriotWatchdog said...

Be careful what you ask for. You might get it. If there was a section of this "near future news" you left out that is crucial, it would be how those folks (COS or otherwise) who wanted and got "their" amendments proposed and ratified were going to actually uphold them.

Those who believe that amending the Constitution will solve everything never speak to or offer any change of behavior patterns for those state legislatures/legislators who are just as guilty of stealing from the people as the feds are. They never speak to what behavioral changes the citizenry will be required to adopt in order to enforce the newly-amended Constitution.

Which of the proposed amendments will make statesmen from scoundrels? I haven't seen that one yet.

Patriot Coalition has made this simple argument since day one of our involvement:

The Constitution isn't the problem. Amending it isn't the solution.

All the pro-Article V crowd wants to discuss are feel-good amendments and the process by which they can get them into the Constitution. They place no responsibility on the People for allowing things to get so far out of hand, nor do they suggest/recommend that citizens change their behavior and civic engagement, i.e., nothing for Joe and Jane Citizen to do to fix things either, just support the change.

Hogwash! Ask the wrong questions, and the answers won't matter.

If we aren't holding our public servants accountable to their oaths now, what will we do differently to hold them accountable after these magic amendments become the law of the land?

Thomas Jefferson's words should give everyone a reality check. We speak of liberty, and the costs associated with acquiring it, and that is as far as the pro-Article V crowd goes in their marketing.

Jefferson spoke to how we keep it. "Eternal vigilance." Looking up that term reveals there is ongoing work to be done.

Eternal: without beginning or end; lasting forever
Vigilance: watchfulness

The Constitution isn't the problem. The President isn't the problem. Congress isn't the problem. The courts aren't the problem.

WE THE PEOPLE are the problem. We will never have government of, by, and for the People if "We" (the People) don't get more involved, engaged, and informed about what our elected officials are doing on our behalf, with our money.

9:00 PM, February 07, 2017  
Blogger Mark Moore (Moderator) said...

Glad you made that comment. I believe it, I just could not work it into this one. Also, tell me more about the "Patriot Coalition" and how I can reach out to you guys...

8:07 AM, February 08, 2017  

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