Friday, January 3, 2014

Article V Convention Scenarios



Is an article V convention the last best hope to save the republic, or the quickest way to complete its demise?   Probably neither.   Two other scenarios are more likely.   The risk of a "runaway convention"  is less likely, but the probability is not zero, or even close to zero as some proponents of an article V maintain.   In this article, I will outline a less-likely, but still possible, disaster scenario in which the seeming "fail safes" are evaded, much to the shock and surprise of the folks back home.

To understand the basis for these scenarios one must understand the content of the article in question.   Amidst all the back and forth I have been amazed at how little attention has been paid to what is said, and not said, in article V itself.  Here then is the relevant text....

"The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress;"

In the above paragraph, who is writing the call to convention in an amendments convention?  Its Congress.   The states only apply to Congress to call it, but the text of the article says that Congress is the entity responsible for calling it.  Look again at the wording if you have any doubt.  I have highlighted the relevant words in red so at to more easily connect them.

A second question.  Who is responsible for proposing the method of ratification of whatever the amendments convention proposes?   Again, its Congress which proposes the method by which the amendments would be ratified.  I have highlighted the relevant phrase in blue.

So Congress is the one writing the call to convention.  Much has been made of the fact that the wording indicates congress "shall" call a convention.   That is to say, much has been made of the fact that congress is obligated by the wording to call the convention, but not enough consideration has been given to the fact that the wording gives them not just the duty, but the authority, to write that call.   A reasonable expectation is that they would perform this duty with the same devotion to self-interest which has marked the performance of all of their other recent "service."  Therefore I fear we can expect no good from an article V convention unless we first do the hard work of taking back congress (and to this point most states have not even taken back their state legislatures yet).

How might they rig a constitutional convention?  Many activists assume that Congress would write a simple call which would give the states maximum flexibility in how they might select delegates.  This assumption is not supported in the text of article V, and is not consistent with the behavior of recent Congresses.  There is nothing in the text of article V which restricts Congress in the drafting of the call to convention in any way.  Any dispute on this question would be decided by federal courts who have proven to be very favorable to their employers, even when claims of federal jurisdiction are not supported in the text of the Constitution.  And remember that in this case, the text does support claims of federal jurisdiction over the drafting of the call to convention.

Congress could decide to write the call so that there are "set aside" delegate seats for various organizations and interest groups.   With all this power at stake in one location, this high-stakes event will be of great interest to the lobbies which fund Congressional campaigns.   Why would this be the one occasion on which our representatives decided to listen to you rather than the people they have been having lunch with every day and who have been writing them large checks?  This would be the fund raising opportunity of the century for both D.C. based political parties.

So the Republicans might decide that each state's delegation should have a set aside for the U.S. Chamber of Commerce office in each state.  The Democrats might set aside seats for the state affiliates of Planned Parenthood, ACORN, and the National Organization for Women.   Both sides would be interested in making sure that the Federal Reserve and the large banks have significant representation.   Both sides would want to give lots of seats to the insiders who run the Republican and Democratic parties.   By the time they were done rewarding their contributors, few seats would be left for true grassroots delegates and little good could be expected from a convention where most of the delegates were simply picked from among the members of the present ruling class which has so twisted and ignored our current document.

Look at the way the two D.C. based political parties run their party conventions for a clue as to how those same people might write the rules for this convention.   Almost 20% of the delegates to the Democrat Convention in 2012 were "superdelegates" picked by the party with no input from the grassroots.   The Republicans had a similar class of delegates, which they called "unpledged" delegates.   But those represent just the most blatant end-runs around the democratic process.   Each state delegation also had their rules and procedures which amounted to a way for the party to get more "safe" delegates into those seats.   And they will write the rules to tilt the delegate selection process even further in their favor if they need to in order to maintain control- just witness the recent rules changes that the Republican establishment dishonestly rammed through in order to keep a conservatarian grassroots insurgency from taking root.

Still, just because terrible amendments are very likely to come out of an article V convention does not mean that those terrible amendments will wind up in the constitution.  There is one more significant protection against bad amendments becoming the law of the land, and that is a need for ratification in three fourths of the states.   State legislatures which are responsive to the people, or state conventions stocked with true grassroots delegates, would be very likely to refuse to ratify harmful amendments.   Proponents of an article five convention rightly point out that honest ratification conventions or state legislatures would refuse to ratify amendments blatantly hostile to liberty, and that 3/4ths of the states must ratify an amendment in order for it to be placed in the Constitution.

That argument is not without merit if you are trying to make the case that an article V convention won't change the constitution for the worse, but it does not speak at all to the other negative consequence of an article V convention- lost opportunity costs.   Congress' convention producing amendments that get blocked from ratification would make the outcome of this process a gigantic waste of time, energy, and effort.   Those whose argument for an article V is that we are running out of time would under this scenario use up even more time without getting any value from it.

There is no getting around the obvious conclusion that the "Amendments Convention" would be the convention that Congress wants to call, not the one you or I or Mark Levin wants to call.  Article V says that Congress calls it, not us, not the states, but Congress.  Federal judges won't even have to make excuses to hand their fellow federal government employees that power- it's hard-wired right into the text.  Those who say we have to do this because we are running out of time should have their argument turned right back around on them- we don't have time to waste for what would be in the most likely case a costly stalemate in favor of a corrupt status quo.

Another possibility is that even though the ratifying conventions are stocked with reasonably good delegates, they vote for amendments which they think will make things better but will in fact make things worse.  So not only would time, energy, and effort be wasted, but we would wind up with a constitution which codifies the establishment's over-reach.

How can this happen?  Well, at least two of Levin's proposed amendments fall into that category.   Superficially, they sound like they will be making things better but the practical effect of them would be to make things even worse than they are now.    See these pieces for a breakdown of his suggested amendments on taxation and on the judiciary.  Most of his other suggested amendments fall into the category of appearing to make things better but resulting in no significant change in the status quo- thus effectively making this another version of likely outcome #1- that the whole thing is a gigantic waste of precious time and resources.

A third possible outcome, and this is less likely than the first two perhaps but not outrageously so, is that the political establishment rigs not only the Amendments Convention but also the ratification conventions.   The people at the "leadership" of the Republican and Democrat parties have a history of getting along with each other better than they do the grassroots outsiders of their own parties.

It could be that Congress stretches its authority to "propose" the "method of ratification".   That is, instead of just saying "we choose ratification by convention", that they would go on to write, as a part of their "proposal", a list of requirements for delegates to the ratification conventions which would essentially shut the grassroots out.   The head of the state association of bankers may not represent your interests, but if they are in your state they could be a delegate in a ratifying convention.   Personally, I feel that this would be an example of over-reach, that Congress was only meant to say which method of ratification would be used and in either case the details would be up to each state.   The problem is that the text does not say that.   The text is silent as to how much detail Congress' ratification "proposal" might entail, and any disputes over those limits will once again be decided by federal courts.

Some states would not stand for such micro-management, and might refuse to even call a convention, or call one in defiance of congress' call to convention with delegates of their own choosing.   In anticipation of such an event Congress could simply write the proposal the same way they wrote the recent Affordable Care Act.  That is, if state governments refuse to set up their own health care exchanges, the feds set one up for them.   They will use the same tactic regarding ratifying conventions.  Any states who fail to set up a "proper" ratifying convention will have one set up for them by the establishment.   In my view this would be an outrageously improper and illegal action- much like all their other improper and illegal actions which they are getting away with.  Yet once it is done, they will have the constitution they want and you will be the one violating it, not them.

But they may not even need to resort to such tactics.   After all, if less than a dozen states refuse to set up their stacked conventions, they can still get their amendments passed by the stacked conventions in the other states.  And these will be amendments which basically amend our current constitution out of existence by making all limits on federal power subject to the discretion of the President (i.e. meaningless).

Heck, it may not even be Congress that does the stacking. It may just direct the Governors to draft the call. How many Governors in this nation really answer to the grassroots and not their party's establishment and big donors?   The top of both parties want centralized power.   They both want out of the restraints and limits on the central government which the constitution places on them.  Both have done and are now doing things forbidden by the existing text of the document.  Why wouldn't they cut a deal with something for both of them?   And why wouldn't the Governor go along?  Because he would be afraid of losing his $50,000 a year job in Arkansas that he can't keep but for eight years anyway?   These people can offer each of the 38 governors who sell out millions in return for their treachery.  And half the population won't even know what happened.

Friends, we are in a mess, and unfortunately there is no way out of this mess which does not involve a lot of work and a long time.   There is no way out of this mess which allows most Americans to continue to comfortably put their trust in one of the two existing Beltway Parties.  There is no way to get good policy while leaving in place bad personnel because ultimately personnel is policy.   I want a solution, just as bad as you do, (here is a start) but I am not going to let my apprehension cloud my judgement and rush into something that by every reasonable look at the text of the article and the recent behavior of our political class will be at best a gigantic waste of time and resources and at worst the coup de grace of our Republic.







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