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Monday, March 19th, 2018Last Update: Sunday, February 4th, 2018 06:56:13 PM

Article V Convention: Gambling With our Constitution

By: Steve Byas

We have heard tragic stories of some poor guy who blows his own brains out, losing a game of "Russian Roulette." You know, that's the game where one bullet is in the chamber of a six-shot revolver, and the two contestants keep pulling the trigger until either one "chickens out," and admits defeat, or one is killed.

While pitying the poor guy, we also think, "How stupid." There was only a one in six chance that the gun will fire out the lone bullet, but the consequences far outweigh the benefits of "winning" the game. It is simply too risky.

That is what supporters of the so-called Article V Convention are doing. Frustrated because our federal government regularly ignores the limitations of the U.S. Constitution, these advocates of invoking a national convention method of proposing amendments claim that the proposed convention will meet and limit themselves to adopting a series of reforms -- reforms which will put the clamps on the progressives in the three branches of our federal government, and restore our constitutional republic.

Maybe. But not likely.

Actually, like in a game of Russian Roulette, the risks far outweigh any possible benefits we could hope for in a so-called Convention of the States.

Article V of the U.S. Constitution provides two methods of proposing amendments to the Constitution, and two ways to ratify any proposed amendment. Of the 27 amendments added since 1789, all have been submitted to the states for ratification through the first method -- two-thirds vote of each house of Congress. The other method -- a convention called upon the application of the legislatures of two-thirds of the several states, which may propose amendments (note the plural) -- has never been used.

Fortunately, the Oklahoma Legislature refused to pass an application for a convention last year, defeating the proposal 56-42. Despite intense pressure from lobbyists, and the urging of former Senator Tom Coburn, the Oklahoma House of Representatives said no. State Representative David Brumbaugh warned his fellow legislators just about who would be running any such convention. "I don't know if you've noticed, but there aren't any Thomas Jeffersons or James Madisons out there." This is an excellent point by Brumbaugh. After all, if the people have sent folks like Nancy Pelosi, Harry Reid, John Boehner, and Mitch McConnell to Congress, is it not reasonable to assume they would send similar personalities to a convention, and not a Madison?

But advocates of what they call an "Article V Convention" argue that the people will not be electing the members of the convention -- state legislatures will simply appoint delegates. Are you kidding me? That is supposed to reassure us?

Besides that, there is nothing -- not one word -- in the text of the Constitution which says each state legislature will elect its state's delegates. The Constitution reads, "The Congress . . . on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments . . ." The only role stipulated for the state legislatures in the Constitution in the creation of the convention is to make application to Congress that such a convention be called. Not one word about how the delegates are to be elected, how many delegates each state shall get to send to the convention, and what will be discussed once they get there. Even the "there" is not mentioned. Perhaps they would meet in Oklahoma City, but I doubt it.

Sure, the state legislatures can make certain demands in their applications, but Congress can simply ignore them. After all, if Congress and the state legislatures disagreed, who would arbitrate between them? The Supreme Court? How often has the Supreme Court sided with the states in any dispute with the federal government? Actually, it is probable that neither Congress nor the state legislatures could dictate the topic or topics discussed at the convention. It would most likely be the convention itself.

One supporter of the Con-Con tried to tell me that each state would be equally represented at the convention. Again, perhaps the framers of the Constitution thought it would be that way, but who knows? The Constitution's wording gives us no guidance at all. Do you really think the large population states would agree to a convention in which state is equally represented?

Most likely, since Congress is given the power to call the convention, Congress would write the rules on how the delegates would be elected, and how many delegates each state would get to send. They might just pick the delegates themselves.

The actual amendments proposed at the convention would not be determined by either Congress or the state legislatures, but rather by the convention itself. It is noteworthy that in the early years of the republic, state legislatures which made applications for a national convention did not even try to dictate the subjects to be discussed. It is a more recent development, with legislators ignorant of history attempting to do so.

One of the most popular topics Article V Convention proponents suggest would be covered is a balanced budget amendment. Others are issues like abortion or term limits. But the convention could meet, and decide they wished to do nothing and adjourn. Or they could take up several topics. They might even decide to make an entire new Constitution, more in line with progressive dogma. As former Chief Justice Warren Burger said, "(T)here is no effective way to limit or muzzle the actions of a Constitutional Convention."

We have only had one such convention in American history. In 1787, the states asked Congress to call a convention "for the sole and express purpose" of considering changes to the Articles of Confederation. But once they met, the delegates determined they needed to start from scratch and construct an entirely new document. We may like the work they did in 1787, but to paraphrase Representative Brumbaugh, just how many James Madisons do we have now?

The proponents of the Article V convention brush away such concerns, contending that any bad proposed constitutional amendments to emerge from such a convention would be defeated in the ratification process. After all, it takes three-fourths of the states to ratify, or agree, to any proposed amendments. Really? Are you willing to play Russian Roulette with the Constitution?

In 1787, the Articles of Confederation provided for amendments, too. Under the Articles of Confederation, any such proposed amendments had to be approved by Congress and all 13 state legislatures. Knowing such ratification was impossible, the delegates ignored the constitutional ratification process spelled out in the Articles of Confederation, and skipped Congress. They also skipped the state legislatures, sending the document directly to state conventions! They changed the number of states needing to ratify from a unanimous 13 states to only nine states. Once nine states ratified, they said, the Constitution would go into effect in those nine states.

James Madison admitted in Article 40 of the Federalist Papers that the delegates had skirted the legal method of ratification. His argument was basically that the ends justify the means -- the Constitution was so needed, it was justified to ignore the Articles of Confederation, the constitution they were then operating under. Now, we can say, well, it turned out well, but are you willing to play Russian Roulette and give a modern convention the opportunity to do what they believe is best? Maybe they would think "best" is to provide for a ratification of some number less than two-thirds of the states. One must understand that most people believe their way is best. Obama thinks his way is best.

For sake of argument, let us pretend that we have a convention, and they actually limit themselves to passing some amendment which places this or that restriction on the power of the federal government. Great. And then they send this magnificent piece of work to the state legislatures, and two-thirds pass it. We've pulled the trigger and the hammer fell on an empty chamber. We have a great new amendment to the Constitution, telling the federal government what for.

That is possible, but highly unlikely. But would it make any difference? After all, we have a Constitution right now that does not authorize most of the stuff Congress does. Presidents regularly ignore constitutional restrictions, boasting they have a pen and a phone. The Supreme Court finds stuff in the Constitution we all know is not there, and we know they know is not there, and we know they know we know it is not there. But they continue to do it. Why pass another amendment for them to ignore? As Nancy Pelosi cackled when asked if ObamaCare was constitutional, "Is that a serious question?"

In 1791, the First Amendment was added to the Constitution. It stated very clearly that Congress was to "make no law" abridging either freedom of speech or the press. Seven years later, Congress passed a law -- the Sedition Act -- which abridged freedom of speech and freedom of the press. The Sedition Act was sent to the dustbin of history following the presidential and congressional elections of 1800. If the people want a government which is limited by the Constitution, they must use the ballot box to replace the personnel of government-- fire them -- who are disobeying the Constitution.

As Congressman John Randolph of Roanoke said, the Constitution is just parchment, unless the people hold their public officials to follow its commands.

About Steve Byas

Steve Byas is editor of the Oklahoma Constitution newspaper. He may be contacted at:

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