Is a Convention of States Politically Possible?

Is a Convention of States Politically Possible?

By Michael Farris Via American Thinker – Mark Levin’s book, The Liberty Amendments, has sparked the hope that American citizens can save the Republic by calling a Convention of States under Article V. Two classes of naysayers have arisen. First, there are those, like my dear friend Phyllis Schlafly, who argue that using the power of the states under Article V is dangerous and could result in a runaway convention. Professor Rob Natelson has decisively answered this contention here. James W. Lucas represents the second class of critic — those who contend that it is politically impossible to call a convention, draft amendments, and send them out for ratification.

Lucas has another plan. He wants Congress to enact a constitutional amendment that gives the states the ability to propose amendments to the Constitution without calling a convention. If two-thirds of the states pass identical legislation proposing an amendment, it would be sent back to the states for ratification.

This idea did not originate with Lucas. It has been around for some time and is generally called the “Madison Amendment.”

Whatever the merits of the Madison Amendment may be, Lucas has argued that his plan is better than Levin’s on the grounds of political realism. Fair enough. Let’s look at this realistically.

In 1999, Senator John Ashcroft introduced an amendment to the same effect as the Madison Amendment. He never got a co-sponsor. In the same year in the House, the companion bill got a total of eight co-sponsors. In 2010, another variant of this bill got a grand total of four co-sponsors in the House.

None of these proposals ever got a hearing. There was never a vote. All of these proposals were dead on arrival. Why? They were introduced in Congress.

Congress will never — ever — ever — pass an amendment making it easier for the states to amend the Constitution. Why? Congress ain’t that stupid. They know that such an amendment would allow the states to do an end run around Congress. No branch of the government in Washington, D.C., will voluntarily relinquish even one iota of power.

I hate to get personal here, but we are just being realistic. One way to measure political reality is by gauging public support for an idea. James W. Lucas has published a book outlining his plan. His book is currently ranked 3,905,513 on Amazon.com. Levin’s book, after a healthy stint at number one, is now ranked number three among all books sold on Amazon. It seems public support resides solidly in Levin’s camp.

Lucas also fails to deal fairly with the scope and impact of the scholarship of Dr. Robert Natelson. Natelson is the premier scholar on Article V issues. Natelson’s work not only appears repeatedly in scholarly journals but also in Supreme Court decisions–he was cited twice in this last term. Originalism in actual practice is not as irrelevant as Lucas seems to believe. Moreover, Natelson’s work is thoroughly practical — taking into account current precedent, political reality, and the original meaning of the Constitution.

Nothing is stopping Lucas from pushing his idea in Congress. Good luck to him. If he gets anywhere close to a vote in either the House or the Senate, I hereby promise him that I will use my grassroots networks of several hundred thousand voters to urge passage in Congress. But since I have worked in Washington, D.C., for over 30 years and have been the chief lobbyist for a constitutional amendment that has gained over 150 co-sponsors, I believe his prospects are dubious.

A realistic plan looks like this. There are 4000 state legislative house districts in the 40 states most likely to support a convention. If we build a grassroots organization in 75% of those districts, we can put significant pressure on the members of the state legislatures to pass a resolution calling for a Convention of States. That grassroots organization needs just one captain in each of these 3000 districts and a minimum of 100 voters who will contact their state legislators to support a convention for the purpose of limiting the power of Washington, D.C. We know we can reach these numbers. We know we can build this network of citizens.

Citizens for Self-Governance has launched a project that will make this plan a reality. We were working on this even before Levin released his book, and now we are ready to start building support. Levin has catapulted this idea into the national spotlight — we have the plan to implement it.

Since launching the Convention of States Project website (www.conventionofstates.com), we have already gained tens of thousands of grassroots supporters. We have created a network of dozens of state legislators who are interested in sponsoring resolutions to call for the convention.

Lucas contends that procedural uncertainties make a Convention of States impossible. It is true that the organizational details of the convention will have to be settled by the convention itself. But they will be settled quickly because every state gets one vote. This rule cannot be contested and will greatly expedite the process.

Lucas’s assertion that the convention will be mired in years of litigation is not based on relevant fact. I have litigated dozens and dozens of constitutional cases over the last 35 years. In fact, I litigated the last major case concerning the Article V amending process (when Congress tried to change the rules for ratifying the Equal Rights Amendment in the middle of the stream).

Again, I hate to be personal, but I did a Westlaw search to evaluate James W. Lucas’s experience in constitutional litigation, just to see if he knew something I was missing. I cannot find a single reported case of any kind for this attorney. It seems he is not an actual litigator.

The only reason for any serious litigation during the Article V process would be if the states fail to employ sufficiently similar language in their resolutions. The Convention of States Project is proceeding on the basis that each state will use an identical resolution. If litigation arises, it will be quickly resolved in favor of a Convention of States.

The truly realistic bottom line is this: if we don’t use the power of the states found in Article V, we may lose liberty forever.

If you don’t want to help, fine. Sit on the sidelines and watch. But I would respectfully suggest that we have both a short window and a great deal of momentum for one idea. Call a Convention of States. Stop the abuse of power by Washington, D.C. Save liberty for ourselves and our posterity

American Thinker

See other articles about a Constitutional Convention of the states to propose amendments using Article V

Comments

  1. Foxy Wizard says:

    It is time to roll up our sleeves and get to work. The Article Five process will work, and I believe the American People are ready.

  2. Dear Mr. Farris —

    First of all, may I suggest that before you attack someone’s ideas that you actually know what they are. My “Amendment Amendment” proposal is most definitely not the so-called “Madison Amendment.” Rather, it is a slightly more elaborate version of an idea which is also one of Mark Levin’s “Liberty Amendments” (chapter 9). Under Levin’s and my proposals the states would propose and approve an amendment only once, not twice as with the Madison Amendment. This makes Levin’s and my approach much more efficient. You can find the text of my proposal at http://www.timelyrenewed.com/?page_id=317.

    Second, you are correct that I am not a politico or constitutional litigator. You are most likely smarter and more experienced (and probably bigger) than I am. l am just an ordinary American who is fed up with a federal government which has expanded in all its branches far beyond its proper constitutional bounds. I believe that that expansion is so vast that constitutional amendment is probably the only legal way to effectively force the federal leviathan back into those proper constitutional bounds. I also believe that we agree on these points.

    So our issue is only one of tactics. I recognize that I cannot argue on credentials. My only ammunition is the validity of my ideas. Let’s leave aside for now the legal arguments, and just look at practical politics:

    1) To get to 34 states for a convention call will require the votes of at least some Democratic state legislatures. You have proposed that the purpose of your Article V convention would be to propose amendments to limit the federal government. This is a wise approach, but what Democrat is going to vote for that?

    2) Assuming you do get the 34 states to call for a convention (and I am well aware that many argue that we met that threshold long ago, but clearly you see a need for a new call from the states), one would have to be enormously naif to think that some liberal somewhere is not going to challenge a convention with state equality in voting on the basis of the Supreme Court’s one-person one-vote jurisprudence. I agree with Professor Natelson that the legal argument favors state equality, but the lawsuit would have to go to the Supreme Court which would bolix the start of the convention for several years. (How can you have a convention without knowing how the votes are going to be counted?)

    3) Finally, after the Supreme Court decided how the votes would be counted, the convention would be held. Liberal law professors would constitute a large voting block and dominate many state delegations as well as all the media attention. What are the chances of amendments limiting the federal government getting approved in such a setting? Years of toil by admirable conservatives such as yourself for nothing.

    Now here is an alternative scenario:

    Some variation on Levin’s and my approach is introduced in Congress. Unlike with the Madison Amendment 15 years ago, now there is a huge public demand for action, hopefully with the support of excellent organizations such as yours. Since it is only procedural and content-neutral, it would be supported by progressives who are clamoring for an amendment to reverse the Citizens United decision. (I am sure we would both oppose such a proposal, but the liberal states would certainly push it at a convention as well, so why not use the possibility to get needed Democrat support for reforming Article V?) With a public outcry from both the left and the right, members of Congress would vote for it just to shut up the voters. I know Congress would know that this opens up an end run around them, but members of Congress have short time horizons, and since such a reform is content-neutral and only procedural so members of Congress would not be committing to any particular amendment, they would vote for it. Do something popular that actually doesn’t do anything right away? That’s right up Congress’ alley! Since it would give states legislatures a significant new role, ratification by the states would follow quickly.

    Then we can get right to the business of enacting needed constitutional amendments. All the work and resources devoted to calling an Article V convention to perhaps no avail could then be directed instead to actually passing amendments. It would galvanize the grassroots, and transform our country in a time frame which would probably find an Article V convention still looking for 34 states or tied up in the courts. It would be hard work. Both Levin’s and my proposals would still require super-majorities of the states, but we also both give the campaigns a number of years to get the approvals.

    Most importantly, I am not proposing that you and your supporters give up the struggle to call an Article V convention. There is some historical evidence that the threat of a convention call can move Congress to action, perhaps on an amendment such as Levin and I propose. Rather, I am proposing that the need is so urgent that a double-pronged approach would be worthwhile. Pursue both the convention call and push Congress on what I call an “Amendment Amendment.”

    We have only the chains of the federal leviathan to lose.

    Cordially,

    James W. Lucas

    • Hi James
      Thanks for sharing your thoughts. Your comment was very interesting but I disagree.

      1) In your first point, conservatives control more of the state legislatures. So, that’s not an issue.

      2) In your second point: The Supreme Court and Congress would have nothing to do with this. The states would write all the rules and they have already met twice to discuss some of the organizational details. I posted an article from Professor Natelson this week rebutting people who think Congress would be able to dictate how an amendment convention could be structured. Professor Natelson said “The framers inserted the ‘Convention for proposing Amendments’ in the Constitution to provide the states with a way of obtaining constitutional amendments without federal interference.” The same thing applies with the Supreme Court which is part of the Judicial branch of the federal government. The reason the framers put this in the Constitution was so that the people and their local government could reign in these huge federal branches (Executive, Legislative, Judicial) and bureaucracies should the time come when the federal government got out of control. And now that it has gotten out of control, we are using that Article. It’s just going to take time to do it right.

      3) Your third point was answered in the first two.

      You are right about the Left wanting to use Article V to overturn the Citizens United decision. They also want to use it to harm the Second Amendment. However, we can’t compromise with them. We conservatives control more of the state legislatures. We need to press forward using the Constitution and history as a guideline. If we dot all our “i”s and cross all our “t’ s there won’t be any way for the Left to stop us.

      You can’t rely on Congress to take care of this in any way because both Republicans and Democrats in Congress are part of the problem. We have to bypass them completely in a Constitutional manner. You implied Mark Levin would agree with you. I doubt he would. I’m pretty sure he is more in agreement with his friend Mike Farris. Mark Levin’s book and amendments are about using Article V and the state legislatures. I doubt he would support trying to use Congress. He has said a million times that an Article V convention for proposing amendments through the state legislatures is the only hope we have. I think he would laugh at the thought of Congress proposing his amendments on their own. I’m sure John Boehner and Mitch McConnell will get right on top of that. …..NOT! LOL.

      I agree with Michael Farris when he said “Congress will never — ever — ever — pass an amendment making it easier for the states to amend the Constitution…. No branch of the government in Washington, D.C., will voluntarily relinquish even one iota of power.”

      Farris also said “A realistic plan looks like this. There are 4000 state legislative house districts in the 40 states most likely to support a convention. If we build a grassroots organization in 75% of those districts, we can put significant pressure on the members of the state legislatures to pass a resolution calling for a Convention of States.” I agree with him that this needs to be the plan the citizens and the state governments follow.

      James, stop by more often. We always enjoy talking about politics and the Constitution on this site. I’ll check out your book. Even though I disagree with your premise, I know we both want to save the Republic. God bless.

      Alexis

  3. Dear Ms. Deacon —

    Thank you for your reply. I perhaps should have begun my post to Mr. Farris with my last paragraph. In principle I am not opposed to the idea of having an Article V convention. I just believe that it would be a wise strategy to pursue an alternative plan along side the convention campaign. Let’s look at some facts:

    1) According to http://www.statescape.com/resources/partysplits/partysplits.aspx, here is the current party breakdown of the 99 state legislatures (one short of 100 because NE is unicameral):

    All Rep = 27 (28 counting NE which is technically non-partisan but probably Rep in fact)
    All Dem = 18
    Split = 4

    It is also important to note that this is the highest number of Rep-controlled legislatures in many decades.

    Given this math, even if every single Rep controlled legislature voted to call an Article V convention, you would still need calls from 6 states with Dem or split control legislatures. By my count, 15 of the 18 all Dem controlled states are hardcore liberal. This means you have to get every one but one of the other states on board. Currently this means getting 12 Democrat controlled legislative houses to vote to call the convention.

    On top of that, as I suspect we would both unhappily agree, being a Republican does not mean that one is a true constitutional conservative, so I am not sure you can count on 100% of the Rep state legislatures either, especially considering the strong anti-convention sentiment in at least part of the conservative movement.

    The math looks very hard, but not inconceivable if the pro-convention forces are willing to do something to bring a lot of Dems on board (or win an historically unprecedented number of state legislatures).

    2) Which brings me to my next point. Given the daunting math above, the pro-convention forces have to have to be animated by an admirable spirit of “never say never.” So I say the same thing about Congress passing an Article V reform amendment which allows the states to initiate amendment proposals without having to go through the archaic mechanism of a convention. The US political landscape has changed massively since Senator Ashcroft introduced the Madison Amendment in 1999. I think that a popular outcry from both the right and the left for such an amendment would move the current Congress, for the practical political considerations described in my post to Mr. Farris and at http://www.timelyrenewed.com.

    Here is where we may have our main strategic disagreement. One has to deal with the world as it is, not as one wishes it were. I would dearly love to see a victory of constitutional conservatism so massive that by simply crossing out t’s and dotting our i’s, you would not have to deal with the left. However, I do not see such a world coming within the time frame needed to save our country. I see no realistic choice but to cut some temporary deal. I think there is a much better chance of drawing some Dem support for a content-neutral amendment eliminating the convention requirement than for a convention dedicated to reducing the federal government.

    3) Finally, let me clarify my references to Mark Levin. Mark supports the concept of having an Article V convention. So do I. I refer to Mark Levin to point out that he also supports a constitutional amendment eliminating the requirement that the states go through a convention to initiate an amendment. My argument is strategic, that we will get farther starting with such an amendment than we will with a drive to call a convention. I am not suggesting that Mark agrees with that strategy (or is even aware of it – I am, as Mr. Farris points out, a nobody). I am simply struggling to increase awareness that there is a second approach which we should consider in parallel with the campaign to call a convention.

    Thank you for your attention, and for your excellent site!

    For Liberty

    James W Lucas

    • I think everybody is open minded to other ideas.

      What progress have you made with your alternative plan? What have you done to increase awareness to it? Maybe you should call in to the Mark Levin show. You would have millions of listeners who would hear your ideas.

      Many blue states like Maryland, Delaware and New Jersey are already on board for the balanced budget amendment and 33 states were present at the last meeting in Indiana called “the Assembly of State Legislatures.” This was part 2 of the Mount Vernon Assembly. Plus, there are citizens working in the grassroots of every state trying to get legislators involved. I think Mike Farris and the people who are working on having a convention of the states have done a fabulous job considering the fact that a year and a half ago most of the population had never even considered this option for saving the Republic. Tens of millions of people have gotten excited about this in the past year.

      If you are right about the world being the way you think it is, then you should be able to amass millions of supporters as well. Nobody is a nobody. Your ideas won’t get far with that attitude. You can do anything you set your mind to by taking action and being persistent. If you are passionate about it, do what the others are doing to increase awareness. You have to do it though. You can’t hope someone else will. The reason Farris, Natelson, Dranis and many of the other COS leaders are advancing their ideas is because they do see the world the way it is and have their finger on the pulse of the population.

      If your supporters can make the same kind of headway with your idea as Mike Farris’ group has done, together we can be working both avenues at the same time. Good luck to you James. Please keep in touch and let me know about the progress you make. I would be interested in hearing about it. Please stop by whenever you wish. -Alexis

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