July 2018 Newsletter

This month…

  • Does the US Constitution Already Have 28 Amendments? 
  • What if Madison’s Amendment Really is Already Ratified?
  • Might a ‘General’ Article V Convention be on the Horizon?
  • Federalist Society Publishes Related Piece…
        Reaching Similar but Different Conclusions
  • ‘Competitive Federalism’ … A Possible Way Left and Right Could Work Together
  • Should Article V Itself be Amended?

Does the US Constitution Already Have 28 Amendments?
Throughout most state legislators’ school years they were taught that the US Constitution had 26 amendments.  Then in 1992, through the work of university student Gregory Watson, a proposal written 203 years earlier by James Madison suddenly became the 27th amendment.

Now comes New Jersey resident Eugene M. LaVergne and four of his associates.  They have alleged in a May 29 court filing that another of Madison’s 1789 proposed amendments (originally known as “Article the First”) was legitimately ratified some 226 years ago, when on June 21, 1792, Kentucky’s legislature voted to ratify, making it the twelfth of fifteen states at that time to do so.

The problem was that apparently some states (like Kentucky, Connecticut and Virginia) apparently failed to formally report their actions to Congress.  Thus no action was taken by Congress to acknowledge ratification of the amendment.

LaVergne’s suit against Congress points out that Article V does not require “reporting”, but instead only requires that a sufficient number of states “ratify” a proposed amendment.  Article V simply says that amendments “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.”

As part of the LaVergne suit, a motion has been filed before a federal three-judge panel convened in the D.C. Circuit.  It has received virtually no coverage.  However Paul Jacob wrote a piece about it at Townhall.com on June 4.  Read it HERE.

Reportedly, Justin Haskins of The Heartland Institute, and G.C. Haskins of the Johnson Educational Foundation have confirmed, “After months of research and a trip to the National Archives, all the claims in LaVergne’s story checked out.”

What if Madison’s ‘Article the First’ Really is Already Ratified?
James Madison’s “Article the First” sought to increase the number of US Representatives proportional to the growth of the population of America to assure that no Congressman represented more than 50,000 citizens.  Madison was apparently trying to give American citizens the best possible representation in the new federal government.  Sadly, his wording was less than pristine.

The US House currently has 435 members, each representing on average 735,000 people.  “Article the First” would expand today’s US House to over 6,150 members.  Surely that is not possible… is it?  If LaVergne’s legal action prevails and ratification of Madison’s amendment is recognized, that may become a reality.

That may not be entirely bad.  In this electronic age Members of the US House need not gather within the DC beltway to function.  Each could have an office in their district (or within each state’s government complex), and could cast votes electronically.  With 50,000 or less constituents, they would surely be more available to those they represent.

Voters would insist that salaries and related benefits for House members would have to be slashed.  Lobbyists and existing members of Congress would hate such a change, but the voting public would probably love it.  State legislators should love such a change too.  They could more readily get the ear of the state’s representatives in the federal legislature.

As the Paul Jacob article (above) points out, “New Hampshire boasts a 400-member state House of Representatives, in which the average House member votes the interests of roughly 3,000 residents.  (And is paid a salary of $100 a year.)  On the other end of the spectrum, California’s 80-member Assembly, the state’s equivalent lower chamber, has each assemblyperson representing 483,000 constituents — closer to the size of the average congressional district.”

Jacob goes on to say, “Nothing would drain the swamp more quickly or more completely than a Congress peopled by representatives in districts small enough for grassroots energy to defeat big money, media consultant driven politics as usual.”  It is worth watching as this under-publicized legal action moves forward.

Might a ‘General’ Article V Convention be on the Horizon?
A group of civic activists with backgrounds in higher education, law, business, military and politics have formed a new group known as American Constitution Foundation (ACF).  They have spent much of this past year studying what they believe to be the Framers’ intent for Article V, and the history surrounding the fifth Article of the US Constitution.

This past month they released an 8-page “white paper” on their findings and conclusions… supported by a 51-page document called Aggregation of Active Article V Applications, which includes the actual state resolutions on which ACF conclusions rely.

They assert that the only kind of Article V convention Congress is authorized to call is a “general convention”, not one limited to a pre-ordained subject.  Further, their research suggests that a sufficient number of state applications for a “general” Article V convention already exist.

They analyze the never-quite-successful efforts of the current subject-centric Article V groups and state, “ACF is focused on disrupting this dynamic to better position the Article V movement for success.”

They conclude that “While there remains some debate regarding what kind of Article V convention Congress can call, the existing evidence favors a general convention.” and “Although ACF believes their study indicates the condition has been met to trigger a call, they also understand Congress is likely to seek affirmation from the states in affirming their intent for a convention.  State legislators will be the key in this affirmation.”  The ACF web site is HERE.

Federalist Society Publishes Related Piece…
    Reaching Similar but Different Conclusions –
Article V scholar Rob Natelson recently produced an extensive study of the many Article V applications that states have adopted over the years.  His study is entitled Counting to Two Thirds: How Close Are We to a Convention for Proposing Amendments to the Constitution?

Like the ACF position (above), Natelson argues that in aggregating applications from states to call a convention for proposing amendments under Article V of the US Constitution, Congress should count plenary (unlimited) applications.  Natelson’s study does not conclude that such counting should lead to a “general convention.”  Rather it focuses on a subject-centric Article V convention of the states.

Natelson concludes, “When counting applications toward a convention for proposing a balanced budget amendment—or, indeed, toward a convention for proposing any other kind of amendment—Congress should add to the count any extant plenary applications. Currently, this count gives us 33 applications for a convention to propose a balanced budget amendment—only one short of the 34 needed to require Congress to call a convention.”

While publishing Natelson’s extensive, heavily-footnoted study, The Federalist Society went out of its way to note that the organization “takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author.”  Natelson’s study can be found HERE.

‘Competitive Federalism’ …
    A Possible Way Left and Right Could Work Together – 
A recent edition of US News & World Report included a commentary by Matt A. Mayer (the CEO of Opportunity Ohio and former senior official at the US Department of Homeland Security).  He says, “The right and left should come together to support competitive federalism – and make America even greater.”

The writer explains, “Based on the Tenth Amendment of the US Constitution, competitive federalism is the idea that the power and money on key policy issues should reside in the fifty laboratories of competition (i.e., the states), not the one-size-fits-all federal government.”

The author suggests that “When states have the freedom to compete on policy issues, every state moves to experiment, innovate and reform.  The freedom to compete allows each state to design policies to fit the unique demographic challenges it faces and to cater to its particular constituents’ wishes.  Because most states are constrained by balanced budget requirements, unlike the federal government that can deficit spend recklessly, states must balance policy costs with the ability of its taxpayers to cover those costs.”

Mr. Mayer goes on to say, “The right should embrace … appreciation for competitive federalism by the left and finally seek bipartisan ways to devolve the power and money on key programs to the states.”

As an example, Mayer suggests, “[L]et’s cut federal taxes by the amount used to fund Medicaid currently and allow every state to determine who to cover, what to cover and how to cover their citizens.  Each state would be forced to make tough decisions, institute major reforms and figure out how to fund its Medicaid program.  States could no longer push for gold-plated systems knowing that their systems would be subsidized by the other states via federal spending.”

Read the Mayer commentary HERE.

Should Article V Itself be Amended?
Fritz Pettyjohn, a former Alaska state senator, has been involved in Article V-related efforts for many years… particularly in the pursuit of a Constitutional amendment to require the federal government to operate under some form of a balanced budget.

During the past year Mr. Pettyjohn came to believe that the Founding Fathers made an inadvertent mistake in their last minute drafting of the Constitution’s fifth Article.  He contends that “The delegates had been meeting for almost four months, and it was time to wrap it up.  This is the atmosphere which surrounded the adoption of Article V.  According to Madison’s notes, it was the subject of heated debate.  Several amendments were adopted, and incorporated into the Article.  They were writing Article V on the fly.”  See a blog written by Pettyjohn on this topic HERE.

It is generally recognized that Article V intended to provide both the Congress and the states equal footing in proposing amendments… but it doesn’t.  A simple majority in both Houses of Congress can meet and consider a possible amendment and, upon a positive 2/3 vote in both Houses, can propose an amendment to the states for ratification.  By contrast, the quickly-approved Article V terms require 2/3rds of the states to apply to meet, but only a simple majority to propose an amendment to the states for ratification.  Pettyjohn sees this disparity as an unintended error in original drafting.

Pettyjohn says, “Since Congress won’t act, fixing this mistake is the responsibility of the state legislatures, and their leaders.”  He equates his proposal to fix Article V to the procedural amendments that were the subject of the 11th, 12th and 20th amendments.

Dubbing his proposal “the Mason Amendment” in honor of Constitutional Framer George Mason, Pettyjohn currently has no organized effort to promote an Article V movement to amend Article V, nor even a web site promoting that idea.  But, Pettyjohn regularly writes about the need for such an amendment in his “Reagan Project” blog.  He can be reached at: jpettyjohn@hotmail.com.

Articles Worth Reading –

  • A June 22 National Review article by Heather Wilhelm: A Renewed Case for Term Limits.  Find it HERE.
  • The June 25 edition of ConservativeHQ (billing itself as “The online news source for conservatives and Tea Partiers committed to bringing limited-government constitutional conservatives to power”) carried an extensive piece by Jeffery A. Rendall that lambasts the non-performance (failure to fulfill promises) of Republican leaders in Congress.  Read it HERE.
  • The June 26 edition of The Daily Signal (Heritage Foundation) carried a story headlined Desperate Deficit Times Require Desperate Budget Reform Measures for a ‘Brighter American Future’ by Romina Boccia and Lauren Bowman.  Read it HERE.
  • A June 29 story on MissouriNet.com reported that a Missouri judge “quietly dismissed a lawsuit … over a resolution the legislature approved in 2017”.  The resolution in question was SCR4, the 12th state resolution supporting the Convention of States Project request for an Article V convention to propose amendments to the Constitution.  Read the story HERE.

A Concluding Thought –

“As a nation, we have a $21 trillion national debt,
and by the end of the year 2048, every penny
the federal government takes in will be used to service the debt.
That means there won’t be money for anything,
because we won’t be talking about cutting the budget
because there won’t be any budget.”

Former Presidential candidate and
Secretary of Housing and Urban Development,
Ben Carson… in a June, 2018 interview
with Newsmax magazine.

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