August 2018 Newsletter

This month…

      • Tell Congress:  Count the Damn Article V Applications  (Did we get your attention?)
      • New Orleans Hosts National Conventions
      • Lawsuit Against CoSP Proponent is Thrown Out
      • Ohio Shows How States Can Solve  Gerrymandering Issues
      • Think Tank Isn’t Thinking It Through
      • NC Newspaper Issues National Debt Alarm

Tell Congress:  Count the Damn Article V Applications –
Submitted by Lituus
All Article V activists want Congress to acknowledge and count the state-adopted applications for an Article V convention of states to propose constitutional amendments.  Why else would one work to persuade state legislators to adopt the resolutions which lead to such applications?The theory (reality) behind the wording of the second option in the Article V provision for proposing amendments to America’s governing charter is that Congress was to keep track of Article V applications and acknowledge them as they come in from the states.  Common sense dictates that also requires periodic counting of such applications.When at least a certain number of states apply (currently 34) for a convention to propose amendments, Article V demands that Congress set the time and place for such a convention to convene.  Simple huh?  Apparently not.In the 115 sessions of Congress since 1787, its members have never even tried to acknowledge or count the state applications submitted pursuant to Article V.  In early 2015, under the leadership of US Rep. Steve Stivers (OH), the US House finally adopted a Rule directing the House Clerk (under the Chairman of the Judiciary Committee) to make all existing Article V applications “electronically available”.   At the time Stivers said it was his intent that all Article V applications be “organized by subject, state of origin and year of receipt”.  That Rule is reportedly expressed as “clause 3 of House Rule XII” in the 45 pages of House Rules.  Try to find it.

By December 2015 only 20 such Article V applications were listed on the Clerk’s web site (http://clerk.house.gov/legislative/memorials.aspx).  Several non-governmental groups have done their own research and have concluded that more than 700 Article V applications have been adopted by state legislatures over the years and submitted to Congress.  As recently as 1993 (well before the flurry of Article V activity of the last 10 years) Professor Michael Stokes Paulsen, a well-respected constitutional scholar, counted 399 “active applications”.

As of July 20, 2018, the above referenced US House web site lists just 163 Article V-related documents (applications and rescissions… in other words not all of the listings are “active” Article V applications).  More importantly, there is no evidence that Members of Congress or any committee of Congress are/is even counting the applications toward the 34 needed to trigger a convention of states to propose amendments.

Congress Is Not Motivated to Count Applications
In Federalist 85, Alexander Hamilton described the second option in Article V as a way to assure that states had equal standing with Congress so ”We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”

No self-serving Congressman wants “barriers” to be erected against the “encroachments of the national authority”.  That is no doubt why Congress continues to ignore Hamilton’s further words: “By the fifth article of the plan, the Congress will be obliged ‘on the application of the legislatures of two thirds of the States … to call a convention for proposing amendments’.”  And, “The words of this article are peremptory.  The Congress ‘shall call a convention.’  Nothing in this particular is left to the discretion of that body.” 

Sadly, Congress has found a way to exercise its “discretion” over the obligations set forth in Article V.  It ignores them!

In Federalist 43, James Madison said: “That useful alterations (to the new Constitution) will be suggested by experience, could not but be foreseen.  It was requisite, therefore, that a mode for introducing them should be provided.  The mode preferred by the convention seems to be stamped with every mark of propriety.  It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.  It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

Pressure MUST be Put on Congress to Acknowledge & Count Applications  
Two recent entrants into the arena of Article V activism are beginning to get a bit more militant in their efforts to force Congress to take their Article V obligations seriously… American Constitution Foundation, and Let Us Vote for a BBA (which is also campaigning to get Congress to choose the state convention mode of ratification for any amendment proposed by an Article V convention).   They are pressing Congress by letting voters know that Congress is falling down on its Article V obligations/duties.

State legislative leaders must act too.  We are the representatives of the voters.  We hold the constitutional powers… and obligations… to exercise state sovereignty.  We know and interact with our representatives in Congress more closely than do the non-elected people of our communities.  We must “collar” our Members of Congress, point out their obligations/duties under Article V, and get them to formally acknowledge and count the existing Article V applications.

If Congress and its leadership are not making a serious effort to keep track of, and count Article V applications, how can they even pretend to be honoring and upholding the Constitution.

New Orleans Hosts National Conventions –
The American Legislative Exchange Council (ALEC) will hold its 45th Annual Meeting in New Orleans.  The convention will be held at the Hilton New Orleans Riverside Hotel from August 8 through 10.

Some 1,100 folks have registered to attend.  During the convention the ALEC Federalism Task Force will meet on Friday 8/10, 2:30 to 5:30 PM.

During July, New Orleans also hosted the 2018 National Libertarian Convention.  The Convention of States Project (CoSP) reports that their campaign received considerable attention and support at that convention.

Lawsuit Against a CoSP Proponent is Thrown Out –
A Missouri man, Richard Calzone, recently filed a lawsuit against Missouri state Senate President Pro Tem Ron Richard seeking to void a resolution that state’s legislature approved in 2017 (SCR 4).

Calzone contended that the Convention of States Project-proposed Article V application was illegal because it was not sent to the governor before being sent to Congress.  According to MissouriNet.com, in late June Cole County Circuit Judge Jon Beetem issued a decision saying Calzone “doesn’t have standing to bring a lawsuit as a taxpayer because he wasn’t harmed by the legislature’s actions.”

The article went on to report that “Beetem further determined that Article V doesn’t include the governor in the process for applying for a convention of states and also noted the resolution was not subject to state law because the legislature was exercising authority granted under Article V of the U.S. Constitution, not the state.”

In a related opinion piece published by The Hill on July 17, headlined Missouri court gets it right on constitutional amendment law, Article V scholar Rob Natelson noted, “The court also recognized that a state legislature’s power to apply derives from the U.S. Constitution, not from the reserved or legislative power of the state. Moreover, the Constitution gives the power to apply only to state legislatures. The governor has no role in the process.”  Read Natelson’s comments HERE.

Ohio Demonstrates How States Can Solve Gerrymander Issues –
A July 7 story in Politico by Erick Trickey reported that in Ohio voters ratified a bipartisan deal on the drawing of congressional voting districts… a deal that gives the minority party more say in how congressional maps are drawn.

The story, headlined States Aren’t Waiting for the Supreme Court to Solve Gerrymandering chides the Supreme Court for not making decisions on alleged “gerrymandering” cases while commending Ohio for demonstrating how states… on their own… can develop fairer district maps.  He notes that the Ohio decision has not gotten much attention.

According to the author, “Ohioans think their reform could be a model for how states can fix gerrymandering on their own, without waiting for the Supreme Court.”  The Ohio plan was Republican-proposed and Common Cause-supported.

Article V and Federalism proponent Ohio state Senator Matt Huffman, a Republican who helped broker the deal, said, “It’s designed to force the majority and minority parties to get serious about what they want, to get a deal struck.”

Reportedly, redistricting reform questions may make the November ballot in Michigan, Utah, Colorado and Missouri.  Read about Ohio’s plan HERE.

Think Tank Isn’t Thinking It Through –
The Heritage Foundation once again has expressed support for a constitutional balanced budget amendment as a way to reverse national debt.  On July 16 the organization released a report by Frederico Bartels and Justin Bogie that explicitly says, “A balanced budget amendment (BBA) would be the best method of ensuring fiscal discipline over the long-term.”  Read the Heritage Plan to Save America from Bankruptcy HERE.

Sadly, Heritage continues to avoid acknowledging that the second option in Article V (a state convention to propose such an amendment) is the ideal tool for achieving that end.  In spite of years of examples of how it will not happen, Heritage seems to believe that a meaningful BBA will be proposed by Congress.

North Carolina Newspaper Issues National Debt Alarm –
On July 7 the Charlotte Observer (Charlotte, NC) published an editorial headlined Democrats’ approach on the national debt is bad. Republicans’ might be even worse.

The piece, bylined “The Observer Editorial Board”, started by observing, “Republicans and Democrats have never been further apart, it seems, except on one thing: their willingness to spend more than they take in.  The United States is spending about $114 million more than it receives in taxes – every hour, 24 hours a day.  Neither party, including the one that runs on fiscal conservatism, has the guts to stem the red ink tide.”

“The nonpartisan Congressional Budget Office released its latest long-term budget outlook last week.  Its findings were even more alarming than these reports usually are.  The federal debt as a percentage of the economy is the highest (at 78 percent) it has been since 1950.’

Within 10 years, it will be at 96 percent of the economy, the CBO predicts.  Six years later, in 2034, the nation’s debt-to-GDP could set an all-time record, surpassing 106 percent.  By 2048 it will hit 152 percent, ‘the highest in the nation’s history by far’.”  Read the entire editorial HERE.

A Timely Thought…

“Now the senate is looking for ‘moderate’ judges, ‘mainstream’ judges.  What in the world is a moderate interpretation of a constitutional text?
Halfway between what it says and what we’d like it to say.”

Antonin Scalia – Date unknown

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