Convention Of States – What should you remember when drafting a constitutional amendment

Convention Of States – What should you remember when drafting a constitutional amendment

Convention of States-
What should you remember when drafting a constitutional amendment?

Professor Natelson is a leading authority on a Convention of States.

By Professor Rob Natelson Via i2i.org-
Last month, Citizens for Self Governance sponsored a simulated convention for proposing amendments in Williamsburg, Virginia. I was an adviser for the project, and just before the initial meeting I spoke to the assembled commissioners.

My purpose was to provide them with some last-minute tips on drafting proposed constitutional amendments.

Several people have asked me to post my remarks on the web. Those remarks were delivered extemporaneously—or rather from very sketchy notes—rather than from a prepared text. As best as I can reconstruct them, however, the drafting tips were as follows:

* In your committee, first prioritize what you want to do. In other words, decide what you want to accomplish rather than begin with submitted drafts that might cost you time but ultimately have little support. For example, in the Fiscal Restraints committee, you might decide that the priorities are a balanced budget amendment and a government accounting amendment. Then start with submitted drafts that fit those ideas.

* Remember that any proposed amendments must be ratified, which will require super-majority support throughout the country. Maybe the people in your district want to repeal Social Security, but most Americans do not. Focus on worthwhile reforms they will support.

* Keep your proposals germane. The scope of the convention is set by the scope of the application. For this simulated convention, the scope is limiting federal power and jurisdiction, imposing fiscal restraints on the federal government, and term limits. Proposals that do not fit within those criteria are out of order. Most of the tips listed here are general guidelines only, but the germaneness requirement is a firm rule.

* Your proposals should comport with the general style of the Constitution, and part of that style is brevity. The longest amendment ever passed (the 14th) contained only about 420 words, and the poor drafting of that amendment suggests even that was too long. Americans will be justly suspicious of wordy amendments.

* Avoid using words and phrases that can be easily manipulated or will invite the courts to become involved in ordinary government processes such as budgeting. Good illustrations of terms to avoid are “gross domestic product” and “emergency.”

* Avoid substantive rules and in favor of the procedural approach. For example, if you want to create an exception for emergencies, don’t try to define (or even use) the term “emergency.” Instead allow exceptions if approved by some extraordinary procedure, such as a supermajority vote in Congress or approval by the state legislatures.

* Don’t inadvertently concede the constitutionality of programs that might be challenged in the future. For example, if an amendment authorizes Congress to spend 19% of GDP, the courts might interpret the amendment as implicitly authorizing all major spending programs in force the last time the federal government spent 19 percent of GDP. You will want to leave that issue to a later day rather than prejudice it now.

Both the deliberations themselves and the amendments successfully proposed show that the commissioners generally followed my advice. The longest amendment proposed was only 199 words. The convention assiduously avoided easily-manipulated terms in favor of procedural safeguards. They rejected most proposals that, while popular among themselves, were unlikely to be ratified by three fourths of the states.

i2i – Independence Institute

Comments

  1. Since this procedure hasn’t been used since the last state-led Article V amendments convention held in 1861 (The Washington Peace Conference), it was both wise and prudent for advocates of such an event to gather actual, duly-elected state representatives from across the country to participate in this very authentic, if truncated, practice run, much like one would test drive a car before buying, or spend a hour or so in the batting cage before a big game. It was like debate prep on a national scale.

    But even though it was a dry run, what was very real was that it put on clear display for everyone to see that the system still works! Even when there were those who stood up in the simulation to fight AGAINST the primary objectives of reducing the size, scope and jurisdiction of the federal government, as would be expected in the real deal, they were unable to “hijack” the process, as has been the fear most loudly voiced by naysayers, by elitist defenders of the status quo, by the uninformed, and by misled opponents of Article V’s Option 2.

    The unmitigated success of this event puts to rest once and for all the groundless fears of a “runaway convention” where all our liberties are repealed as irrelevant and replaced with someone’s Draconian nightmare. The Founders were right… the fear-mongers are wrong.

    #COSProject #AZLeg

  2. Very informative.

  3. Brilliant! I’ve learned so much about the Constitution and how it is interpreted by following the Convention of States Project.

  4. Kaydell Leavitt says:

    Where can I find the exact wording of the amendments that were proposed?

  5. Keep up the good work, Queen of Liberty. We need to keep this topic in front of as many as we can. Watch this video of Sen. Mike Lee of Utah explain why we need to do this: http://dailysignal.com/2016/09

  6. Char in ND says:

    Article V Convention of States. The only recourse remaining for us to remain sovereign citizens. Thank you for the excellent post, Alexis!

  7. I agree we need an Article V Convention of States. It is the only way to fix our Government other than a lengthy  and untimely nullification process for every bill unfit for our Constitution. We still also need the Nullification Process also! I talked to John Neubert an Independant Running against Rep. Gary Hicks for TN District 9. Long story short he lost. I was talking to him about supporting the Article V Convention of States and Federal school tax dollars that would be lost in state budgets and I told him a Convention of States could and should include removing all Federal Mandates requiring this money to fund the unconstitutional Mandates eliminating the need for Federal Money.

  8. All Americans should want the federal government to be restricted from their constant over reach, the COS is the only solution to the question of our generation, do we desire to self govern our self or do we wish to be ruled like subjects.

    • Well said Joshua. Very true. And things are looking good. I believe Americans do want self government after seeing the election results all over the country. I’m feeling hopeful that in time we can turn things around. God bless you!

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