CONSTITUTIONAL CONVENTION 2012
Amendments Convention; Convention of the States; and/or Article V
A GRIDLOCK OF FACT AND FICTION
A constitutional Convention (Con-Con) is just that, regardless the various softened names it has recently been given. The call for a Con-Con is on the march throughout this country; it is armed and it is dangerous.
Its arms: Fabrications, confusing language, legal ‘terms of art’, and outright lies by advocates manipulating the current fast-paced movement by legislators.
Its danger: In today’s economic climate states are broke, legislators are frantic, panicking and grasping at straws. They’ve been lulled and seduced into believing every deceitful lie they’ve been told, and are now rushing to get the resolutions passed so they can “fix” the problem.
Their solution? An “Article V Amendment Convention (Con-Con) to add a balanced budget amendment to the Constitution. . . or is it their solution?
Legislators know and admit that most officials in all branches of government pay no attention to the Constitution. In fact, today we could say the U.S. Government and Congress have trampled the Constitution, ignoring the Bill of Rights at every turn.
How, then, can any state legislator convince him/her self that a balanced budget amendment would be treated any differently?
We discover that “the fix” is being promulgated – again – by the American Legislative Exchange Council (ALEC), a non-partisan membership organization boasting a membership of over 2,000 conservative state legislators. To set the fix, a 43 page handbook, titled:
“Proposing Constitutional Amendments by a Convention of the States” was provided to their mostly-republican members, along with model legislation to carry back to their states. http://www.alec.org/docs/ArticleVHandbook.pdf
Reading the Handbook is like watching mainstream news: disinformation, spin and lies at every turn. However it gives us an understanding as to how the legislators are being harangued, goaded and shamed into taking this action. From the Handbook: (emphasis on this and following quotes are ours)
“…despite recurrent hopeful talk about how Congress might adopt a BBA [balanced budget amendment] or other corrective amendments on its own, history suggests reformers cannot depend on that. The states must do the job, as our Founders expected them to do.” p 7
“… thus far the states have never exercised their corresponding power to correct federal abuses. As a result, the constitutional design has become unbalanced.” p 7
“Move fast. America is in serious trouble; don’t be sidetracked by alarmism or by hope that Congress may propose an amendment limiting its own power. History shows this is unlikely.” p 21
“If we could address one or more of the leading Founders today, we might tell them what has happened to American federalism—that the states are increasingly mere administrative subdivisions for the convenience of Washington, D.C. After we related the situation, those Founders doubtless would ask, ‘Well, have you ever called a convention of the states under Article V?’
“And when we admitted we never had, they might well respond, “In short, you refused to use the very tools we gave you to avoid this situation. The sad state of American federalism is clearly your own fault.” Thus, the responsibility for reclaiming constitutional government is very much ours.” p23
State legislators believe that they will have complete control over the process, electing delegates and managing the Convention. Here’s why they believe it:
“Ron Natelson [author of the Handbook] encourages legislators to promote the right amendments, use the right amount of specificity, and keep the process within the states’ control.” p iv
“The convention is a deliberative body whose members answer to the state legislatures they represent.” p 9
“Retain state control over the convention. (author emphasis) State legislators applying for a convention must send a clear message to Congress that this procedure is within the control of the states. Congress’ obligations are to count the applications, call the convention of the states’ behalf, and choose a mode of ratification. Those are the prerogatives of the state legislatures and of the convention delegates responsible to the state legislatures.”
FACT: There is no provision in Article V. empowering state legislators to choose the delegates to a Constitutional Convention or to “limit” the scope of a Con-Con. There are no rules, no regulations nor instructions.
Some of the resolutions we’ve seen are calling for a Con-Con. However, many legislators who’ve taken the bait, insist that they are “not applying for a constitutional convention; it’s an Article V Amendment Convention”.
“. … also corrects common myths about the procedure … the foremost of which is that the convention authorized by Article V is a “constitutional convention”. p 6
“Other acceptable names for a convention for proposing amendments are amendments convention, convention of the states, and Article V convention. (For reasons explained in section II it is inaccurate and misleading to call a convention for proposing amendments a “constitutional convention“) p 7
Natelson states that the amendment convention is not an assembly with…
“… wide authority, such as one charged with drafting or adopting a Constitution. Thus, it is simply incorrect to refer to a convention for proposing amendments as a ‘Constitutional Convention’. They are different creatures entirely” p 4
The source to which his 4th footnote refers is the book Natelson himself wrote! He quotes himself. Maybe Natelson is the only constitutional expert who conjured up this notion.
Fact: There has never been a convention “charged with drafting or adopting a Constitution”; for over 200 years every amendment to the Constitution originated in Congress, then sent to the states for ratification.
Section V. consists of two pages attempting to prove The Myth of a Runaway Convention. None of it holds water because it can’t be proven. In bold letters, he writes:
“The runaway convention scenario was conjured up in the 19th century to dissuade state lawmakers from bypassing Congress through the state application and convention process.” [conjured: ’cause to appear as if by magic’]
“Advocates of the runaway scenario . . . argue that the 1787 Constitutional Convention disregarded its instructions. Unfortunately for their position, the widespread claim that the 1787 Constitutional Convention disregarded its instructions is substantially false (see Appendix C).” p 18
When we go to Appendix C. the Q. & A. section, we find this:
Q 23. Isn’t it true that the 1787 Constitutional Convention was a “runaway” – that Congress convened it under the Articles of Confederation only to propose amendments to the Articles, but it ended up drafting an entirely new Constitution?
A. The truth is quite to the contrary: Most delegates had full authority to recommend a new Constitution. p 22
Here we find an interesting twist. First, the question is true. It was a runaway convention. The answer is an outright lie.
Secondly, he sent his readers in a circle. He makes a false statement on page 18, refers to Appendix(C), Appendix (C) refers to footnote ’22’ which once again refers to his own book as the source of information. One reader called it incestuous.
The advocates are offering false assurances that a convention can be limited to a single subject and that it will not, CAN NOT become a runaway convention. The truth is, they have no way of enforcing such a claim. There is no historical evidence to prove it because since the drafting and ratification of the Constitution there has never, ever been a Constitutional Convention called. All 27 amendments have been proposed by Congress and ratified by the states. Why? Because the dangers of a repeat of the 1787 Conference of States are too well known.
The Continental Congress, as well as the respective states of the attending delegates to that conference, gave strict instructions that they were only to “amend the Articles of Confederation”.
In a 40′ x 40′ room, fifty-five men debated in secret (locked doors and windows nailed shut) from May thru September, the muggiest months of the year in sweltering Philadelphia. When all delegates were present they commenced to form a committee of the whole, took a vote, and it was done. George Washington rapped his gavel and pronounced the Articles of Confederation “hereby resolved” (or words to that effect one would imagine). The free-for-all began.
And it could happen again, just like that! The irony here is that Ron Natelson, the author of the Handbook, who’s convinced hundreds of state legislators that there is no risk, that they can control the convention, choose the delegates and fix the economy by calling for a Con-Con – this same Ron Natelson has admitted in writing that:
“Of course, abuses of the Article V amendment processes are possible.”
What? Abuses such as throwing off the shackles of their instructions to amend the U.S. Constitution? Bringing forth a new constitution already mapped? Yes. He went on to say that “the possibility must be viewed against the clear and present danger to individual rights and freedom of doing nothing.” In other words, go for it and let’s see what happens!
From Natelson’s book, “Amending the Constitution by Convention: A Complete View of the Founders’ Plan”, p 2. Quoted in a “Position on an Article V Federal Constitutional Amendment Convention”, by the Institute of Principled Policy. A worthy read. principledpolicy.com
The very first paragraph in the Handbook’s “Executive Summary states:
“The balanced budget amendment is overwhelmingly supported by the American people. Polls over the last several months by CNN, Fox News, and Mason-Dixon show that nearly three-fourths of Americans favor a balanced budget amendment to the U.S. Constitution”
Why are we not surprised by that statement? Mainstream news channels have been helping this along, first discussing the deteriorating economy, and then whipping viewers into a frenzied belief that “a balanced budget amendment” will heal it all. Many of the Tea Partys are also backing the plan.
State legislators who’ve bought into this trap of “moving fast” to sponsor the resolution should be aware of the following disclaimer in the Handbook. You’ll find it in small, fine print at the very bottom of the “About ALEC” section on the first page of the Handbook. Caveat emptor!
“Nothing in this Handbook should be construed as legal advice; seek competent counsel in your own state.”
Now let us lay some facts on the table
Under article V, the founders established two methods for future generations to add amendments to the Constitution.
Under method 1: Two-thirds of both houses of Congress can propose an amendment, and then three-fourths of the states ratify it… or not.
Under method 2: Two-thirds (34) of the states call for a federal constitutional convention, and then three-fourths of the states ratify whatever amendments are proposed by the convention.
Notice that ratification by states does not specify state legislatures! When they see the statement below, in the Handbook and in nearly every piece produced by the advocates of a con-con they automatically think state legislators. Like this one:
“Proposing amendments through a convention, as in Congress, is still only a method of proposing amendments. No amendment is effective unless ratified by three-fourths of the states (now 38 of 50).” p 9
That is one of the most dangerous lie’s-by-omission the promoters are telling state legislators (and the people), who naively believe that they would be able to quash any bad amendment(s), or even a substitute Constitution. They would simply refuse to ratify; so no harm can come even if it became uncontrollable. The truth is:
Article V authorizes Congress to decide on the mode of ratification: either by State Legislatures or by Ratifying Conventions, thus circumventing the legislatures of the states. (In 1933 the 21st Amendment – lifting the prohibition on alcohol –
was ratified by conventions.)
U.S. Supreme Court, Chief Justice Warren Burger, in a letter of June 22, 1983, confirms the dangers, stating:
“I have also repeatedly given my opinion that there is no effective way to limit or muzzle the actions of a Constitutional Convention. The convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or to one issue, but there is no way to assure that the convention would obey. After a convention is convened, it will be too late to stop the convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the confederation Congress “for the sole and express purpose“.”
From Corpus Jurus Secundum 16 C.J.S 9, a compilation of State Supreme Court findings, we read:
“The members of a Constitutional Convention are the direct representatives of the people (1) and, as such, they may exercise all sovereign powers that are vested in the people of the state. (2) They derive their powers, not from the legislature, but from the people: (3) and, hence, their power may not in any respect be limited or restrained by the legislature. Under this view, it is a Legislative Body of the Highest Order (4) and may not only frame, but may also enact and promulgate, Constitution. (5)”
James Madison himself, father of the Constitution, warned against convening a second constitutional convention. When he learned that New York and Virginia were actively calling for an Article V convention in 1788, just months after ratification of the Constitution, he was horrified. He counseled:
“If a General Convention were to take place for the avowed and sole purpose of revising the Constitution, it would naturally consider itself as having a greater latitude than the Congress…. It would consequently give greater agitation to the public mind; an election into it would be courted by the most violent partisans on both sides … [and] would no doubt contain individuals of insidious views, who, under the mask of seeking alterations popular in some parts … might have the dangerous opportunity of sapping the very foundations of the fabric….
“Having witnessed the difficulties and dangers experienced by the first Convention, which assembled under every propitious circumstance, I should tremble for the result of a second, meeting in the present temper in America.” [From a letter by James Madison to G.L. Turberville, November 2, 1788.]
A note of caution: While it does take 34 states to call for a Con-Con, all of them must be for the same purpose. The calls already made are calling for a balanced budge amendment. This new tack the promoters are taking doesn’t use the same language. They’re calling for an amendment forcing Congress to stay within its budget, Although it sounds different, it IS the same purpose: a balanced budget. Any new calls can be aggregated into the former standing calls.
We wonder if it has occurred to those legislatures that the Congress could easily comply with that amendment simply by expanding its budget. And, once again, since they ignore the Constitution and its amendments, why would they adhere to a new one?
WHO or WHAT IS BEHIND THIS CURRENT MARCH TO FACILITATE AMERICA’S DOOM?
A BRIEF HISTORY: The proponents of a Con-Con have been at it for nearly fifty years now: In 1964 the Ford and Rockefeller Foundations funded and orchestrated – via the CSDI (Center for the Study of Democratic Institutions) – the drafting of a new constitution for America. This model constitution, drawing upon the efforts of more than 100 people, took ten years to write. The 40th draft was published in a book titled “The Emerging Constitution”, by Rexford G. Tugwell (Harper & Row, 1974). The project produced the proposed “Constitution for the NewStates of America“.
“In the event you would be inclined to dismiss the relevance of the proposed new constitution, bear in mind that it is the product of a tax-exempt think-tank which took ten years, $25,000,000.00 and the collaboration of over one-hundred like-minded individuals. . . It would be folly to believe this investment is intended to be merely an exercise in political theory. The frightening reality is, the planners are serious in their efforts to impose a new constitution upon the people of America as we enter the 21st Century.” — Col. Arch Roberts, Committee to Restore the Constitution
One year following publication of Tugwell’s plan – 1975 – Nelson Rockefeller, then president of the U.S. Senate, engineered the introduction of HCR 28 calling for an unlimited Con-Con to be held in the Bicentennial year, 1976. With this time line, we can clearly see they meant business and certainly wasting no time to get it done.
” Visible collusion of the U.S. Congress with world government organizations created a backlash which doomed the grandiose Fourth of July Constitutional Convention in Philadelphia. . . . Arrogance was the seed of its undoing.” Col. Arch Roberts.
Abandoning plan one, the conspirators moved directly to the state legislatures and, operating behind a screen of ‘conservative’ organizations, began lobbying the states. Although ALEC’s hired lawyer, John Armor, was the foremost lobbyist to state legislators in the decades-long effort to win the required number of state calls via the “balanced budget amendment” resolution. ALEC wasn’t alone.
Some -not all – of the other players were the National Taxpayers’ Union (NTU), Republican National Committee (RNC), Committee on the Constitutional System (CCS), former Secretary of the Treasury, C. Douglas Dillon, and former Counsel to the President, Lloyd N. Cutler. By 1983, 32 of the 34 states needed had passed con-con resolutions. They were stopped in their tracks by an unsung hero from Chicago, Doug Kelly, who spent the rest of his life covering our backs.
Three states rescinded their call on his watch; the dragon slept until 1993 when 12 states simultaneously introduced calls, once again coming from ALEC, John Armor and Republican states. Successfully stopping that volley, we had barely caught our breath when the Conference of States hit in January ’95, a back-door attempt at a con-con.
The model resolutions for the COS came from the National Council of State Legislators (NCSL), the organization that dumbs down liberal (mostly democratic) legislators as ALEC does the conservative (republicans). ALEC passed a resolution supporting the COS so Republicans joined the fray.
They do seem to be big on dates: The COS was slated to take place in “historical Philadelphia” October 22nd through 25th, 1995 – falling on the October 24th, Fifty-year Anniversary of the UN. By the Grace of our Heavenly Father, that plan also failed. Now, once again, the con-con resolutions being swiftly introduced in states as this is being written, are “model legislation” again, from ALEC.
WHAT ABOUT ALEC ?
Founded in 1973, ALEC defines itself as a non-partisan membership organization of conservative state legislators, boasting 2,700 members. Its main founder, Paul Weyrich, was one of the most powerful conservative leaders of his era. Weyrich lamented the fact that we have no “shadow cabinets” like those in Europe who have parliamentary government. The only way that will happen is if the process (34 states call for a convention) is successful.
It is possible that ALEC was formed for that purpose above all others. A July 14, 2011, L.A. Times article announced that government watchdog, Common Cause, would issue a challenge to ALEC’s nonprofit status, on the grounds that ALEC “spends most of its resources lobbying, in violation of the rules governing nonprofit organizations. Yes. ALEC
Its definition as an organization of state legislators only reveals half its function. It appears that is a mere cover for covert activities behind closed doors. Its major funding is not from membership fees, but large corporations and charitable funds, including the internationalist, one-worlder Bill Gates. Its 2007 budget was $7.8 million, with nearly $3.2m in assets; over 98% of its revenue comes from sources other than legislative dues, primarily from corporations who have ALEC membership, and corporate foundations.
Corporations sit on all nine ALEC task forces and vote with legislators to approve “model” bills. They have their own corporate governing board which meets jointly with the legislative board. These so-called “model bills” reach into almost every area of American life and often directly benefit huge corporations. In ALEC’s own words, corporations have “a VOICE and a VOTE” on specific changes to the law that are then proposed in our states.
Through ALEC, behind closed doors, corporations hand state legislators the changes to the law they desire that directly benefit their bottom line. They fund almost all of ALEC’s operations. Participating legislators, overwhelmingly conservative Republicans, then bring those proposals home and introduce them in statehouses across the land, without disclosing that corporations crafted and voted on the bills. ALEC boasts that it has over 1,000 of these bills introduced by legislative members every year, with one in every five of them enacted into law. ALEC describes itself as a “unique,” “unparalleled” and “unmatched” organization. It might be right. It is as if a state legislature had been reconstituted, and corporations had pushed the people out the door.
We’ll leave Alec now, with sources for further information to our readers. Conservatives may want to shun these sources since they’re from left-wing sites. Before you rush to judgment, ask yourself, “Who else would expose ALEC?” No conservative group, for certain. It’s doubtful the reports are false, since the reporters could risk lawsuits by publishing lies. Truth is truth where ever it is found.
See: thenation.com/article/161978/alec-exposed, alecwatch.org, alecwatch.org/report.html
WHAT CAN WE DO?
How CAN states safely put Big Government back into its Constitutional Cage?
When talking with state legislators, frustrated at our opposition to ALEC’s planned Con-Con, we hear over and over: “What are we supposed to do then? Nothing?!!” It’s a fair question. We have two suggestion, one glaringly in our faces:
BEGIN NOW TO INVOKE THE 10TH AMENDMENT! It’s alive, awaiting our actions. Read it:
“ARTICLE X – The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
To understand this fully, one must read Article 1, Section 8, which lists the only powers Congress has. All other powers belong to the States. Congress has no power to dictate laws pertaining to education, gun rights, health-care, vaccinations, food safety, and the myriad other aspects of our lives. When they pass the bills relating to those subjects, they apply only to territories and possessions of the United States. (See Clause 18 in Article 1, Section 8 – you’ll have to count them; they are not numbered)
In 1993, when Hillary Clinton was working behind closed doors with the Health Care Interdepartmental Working Group, Walter Zellman had, apparently, at the behest of H. Clinton, posed a question to the Department of Justice as to whether the Federal Government could force the States to adopt a National Health Care Plan. Here’s the DOJ response, in part:
“(b) may the federal government use other actors in the governmental system and the private sector as its agents and give them orders as though they were part of a prefectorial system?
“The short answer is “no”. State governments are independent, although subordinated, sovereignties, not subdivisions of the federal government. Although the federal government may regulate many of their functions directly (as where, for example, it subjects state water districts to the Clean Water Act), it may not require them to exercise their own governmental powers in a manner dictated by federal law. The states may be encouraged bribed or threatened into entering into joint federal state programs of various sorts, from unemployment insurance to Medicaid; but they may not be commanded directly to use their own governmental apparatus in the service of federal policy. There is a modest jurisprudence of the Tenth Amendment that seems to have settled on this proposition. See the DOJ memorandum for a fuller elaboration.”
FACT: There is no such thing as a “subordinated sovereign”, although many state legislators believe that.
How does the Federal Government encourage, bribe and/or threaten the states? By withholding huge chunks of money needed for unfunded mandates, for one. Or for other necessary purposes. States can reject the mandates; however they cannot force big government to send the allocated funds. We so often claim that the U.S. Government has usurped States’ power. It isn’t so. State legislatures acquiesced in every case of so-called lost-power.
Today’s legislatures are reaping the legacy of their forebears’ actions. It began with the State and Local Fiscal Assistance Act of 1972, known as Revenue Sharing. All funds from local to state governments are sent to Washington, then back to the states with strings attached. According to the book, Beware Metro Government, even state income tax revenue is siphoned into D.C.
It would be up to the legislatures to unravel that mess. The good news is, there is a way to begin the process of states reclaiming their power. In 1995, Oklahoma State Rep. Charles Key introduced a bill titled, “State Sovereignty & Federal Tax Fund Act“. It passed unanimously through the House; was sent to the Senate where it was evidently buried amidst the ashes of the bombed Murrah Federal Building.
This Act would establish an escrow account within the state. All taxes collected – including alcohol, tobacco, liquor, employees’ Federal Withholding, road taxes, etc. – would be held. The state keeps all interest on the money, and sends the funds to Washington on a quarterly basis; that is, IF the Federal Government acts only within it’s enumerated powers. If that isn’t happening, the escrow funds would be used for state needs.
It has been said that the CCS (Center for Constitutional Studies) wants to wait to call a Con-Con until the United States is in a 1929 type depression, because only then would the people accept the radical changes they intend to make. That time is close, as we can see. Rexford Tugwell was a member of the CCS, and the lead author of the Constitution for the NewStates of America.
Check it out. See what America looks like under that NewStates Constitution. There are no “states” by the way. Just ten regions ruled by appointed overseers; no gun rights, free speech, etc. Think it can’t happen here? We would be fools to deny that it could, and most probably will if we don’t all work in tandem to bring these Con-Con calls to a halt, and then work with, support state legislators’ efforts.
It would behoove states’ legislators to begin now to return state power to whom it belongs.
Invoking the 10th Amendment and passing the State Sovereignty & Federal Tax Fund Act simultaneously could be the first, extremely powerful steps, to making that happen. These steps do not place the U.S. Constitution in harms way, as would a Constitution Convention, a.k.a. Article 5 Amendment Convention. Nothing can be lost, everything gained.
May our Heavenly Father Bless America, and May He Bless and Guide our Work
The Pecking Order By T. David Horton, Constitutional Attorney. Explains Constitutional authority and DUTY of State legislators; their power over presidents, Congress, U.S. Supreme Court and Governors. Transcript of David’s testimony before Illinois State Legislature, 1978.