February 2021 Newsletter

by | Feb 12, 2021 | AVC Newsletter

This Month…

Passion in Politics – January 6 was ‘an example of
unhinged enthusiasm, of passions run amok’
The Original Article V – in the Articles of Confederation
Current News about Constitutional Amendment Proposals
WEBINAR: Advancing the American Voice – Feb. 23
The Principle of Federalism is Getting More Attention
Natelson: Election Integrity is the Real Issue
Senator Lundberg: Will Freedom be Lost on our Watch?
Will One or More States Secede from the United States

Passion in Politics – January 6 was ‘an example of
unhinged enthusiasm, of passions run amok’ –
The January 8 edition of the Wall Street Journal carried a thoughtful review of current passion in American politics under the heading The Founders’ Guide to ‘Knock Down, Drag Out’ Fighting.

The author, Aaron Alexander Zupia, notes that “Americans like to think that the writing and ratification of the Constitution consisted of calm reflection and choice. But the ratification debates were, as the scholar Michael Faber recently put it, a ‘knock-down, drag-out fight’.” Zupia says that in comparison to the January 6 disruptions in Washington, DC, “During the debates over the ratification of the Constitution in 1787-88, the Federalists sought to manage public enthusiasm by enlisting passion on the side of reason. They did so to unify the nation. And we can learn from them.”

Zupia recounts “patriotic enthusiasms,” “mob violence” and “indiscrete zeal for division” (that, according to James Madison, “was inflamed most often by political hucksters, who played on destructive passions to further their own self-interest”), that was exhibited by both Federalists and the so-called Anti-Federalists during the efforts to ratify the new Constitution.

The writer warns that “Passions, when ungoverned, untamed and improperly channeled, make discourse toxic. They stoke division. And they make civic friendship across party lines impossible.”

He says, “Skilled statesmen are capable of channeling patriotic enthusiasm toward common causes and common sentiments. When there is a vacuum of political leadership, passions will be channeled elsewhere. They will flow toward divisive opportunists. They will feed on vituperative language advocating outrage and generating fearful visions of immanent national apocalypse. This will further stoke destructive passions. It will get even uglier.” Read his opinion piece HERE (requires WSJ subscription).

The Original Article V – in the Articles of Confederation –
Only a limited number of state legislators are familiar with the Fifth Article in the US Constitution and the powers that Article confers. Sadly, a far smaller percent of American citizens are familiar with that constitutional provision.

The Articles of Confederation (which preceded the US Constitution) also had a Fifth Article. It might be regarded as “the original Article V.” It dealt with the makeup of the national Congress, but unfortunately it did not provide a way to amend the Articles of Confederation. There was no practical way to do so

Article V, Articles of Confederation: “For the more convenient management of the general interests of the united states, delegates shall be annually appointed in such manner as the legislature of each state shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each state to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the Year.” The Article went on to provide more details on the makeup of Congress.

The lack of a way to correct governing deficiencies led the drafters of the 1787 Constitution to make an amendment provision a high priority for inclusion in the new governing document.

The 1787 Article V says: “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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

The above provision has led to 27 ratified amendments to the US Constitution, but all of those amendments originated in Congress. Not one originated in a “convention for proposing Amendments.”

According to James Madison’s notes: “Col. [George] Mason thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.”

Mason felt strongly about the unfortunate dependence on Congress for amendments. When, after several months of work, the day came for signing the proposed new Constitution (Saturday, September 15, 1787), Mason (and drafters Elbridge Gerry and Edmund Randolph) declined (until later) to sign the new document. Never the less, Article V does grant powers to amend America’s principle governing document.

Current News about Constitutional Amendment Proposals
In a January 10 column carried by the Colorado Springs, Colorado Gazette, former Iowa State Senator Neal Schuerer answered the question: Is it time for an Article V Convention of the States? He answers affirmatively by saying, “We all agree that something is broken: it is self-evident that our voices are not being heard and that our national government no longer serves us but itself.”
Senator Schuerer says, “Such a convention would likely be a series of official meetings where commissioners from all fifty states gather to discuss ideas, debate solutions, and propose amendments to the United States Constitution. Then we the people, through our elected representatives, will be able to consider and approve the solutions. Amendments proposed by the convention would require ratification by three-fourths of the states to take effect.” Read his opinions HERE.

Pennsylvania Congressman Brian Fitzpatrick, a member of the bipartisan Problem Solvers Caucus, has announced that he will sponsor bills proposing three constitutional amendments geared toward “a rebirth of belief in our leaders and our institutions.”
His proposals include: Term Limits for Members of Congress (HJRes6), a No Budget, No Pay act, and a Balanced Budget Amendment (HJRes8). He said he will also be offering a series of other “reform” bills. Read about his proposals HERE.

As the 117th Congress convened, Florida Congressman Vern Buchanan reported that he has filed 10 bills and said, “2021 will be a year of recovery and rebuilding.”
Buchanan said he will be renewing his call for a constitutional amendment to ensure a balanced budget, backed with his “No Pay Raise for Congress Act” which would ensure members of Congress would not be eligible for pay raises if they fail to pass a balanced budget. His proposals did not have bill numbers at press time.

Actually, the 117th Congress already has three resolutions filed which call for a constitutionally-mandated balanced budget (HJRes3 with 28 co-sponsors, HJRes8 and HJRes13). All are exclusively backed by Republicans. The 116th Congress saw a dozen such resolutions filed. None of these proposed constitutional amendments stand a ghost of a chance of moving forward. But they keep the folks happy back home.

Meanwhile, BBA activist Mark Guyer is quietly working to motivate legislators in Idaho, Montana and South Carolina to adopt resolutions calling for a convention of states that would propose a balanced budget amendment to the Constitution.

At the start of the new year the Committee for a Responsible Federal Budget (CRFB) reported that the national debt is now larger than the economy (GDP). CRFB also released their “Top 20 (Debt/Deficit) Charts for 2020.” Find them HERE.

A related opinion piece in the Bangor (Maine) Daily News says We’ve stopped caring about the deficit. The author, Matthew Gagnon, the CEO of the Maine Policy Institute, doesn’t really believe that sentiment. Rather, he asks, “When, exactly, did we stop caring about the national debt?” Read his thoughts HERE.

Advocates of the Convention of States Project (CoSP) have recruited Nebraska State Senator Steve Halloran and 16 other state senators to re-introduce their proposed 3-topic resolution calling for a convention of states (LR14). Read about their efforts HERE.
Missouri State Senator Eric Burlison has introduced SCR4, another effort aimed at getting Missouri to join the other 15 states which have adopted CoSP applications.

Separately, Missouri State Senator Bill White has introduced SCR1, a proposed constitutional amendment “to give states the authority to repeal a Federal rule, regulation, or statute, or a Federal court ruling relating to certain federal actions, when ratified by the legislatures of two thirds of the several states.” Read about that effort HERE.

In early January, Phil Blumel, President of US Term Limits announced that HJRes12, the term limits for Congress resolution, was introduced in Congress. It was introduced with Congressman Ralph Norman as prime sponsor, along with 36 co-sponsors.
Meanwhile in Kentucky six State Representatives have introduced HJR27, the US Term Limits bill. Iowa State Senator Zach Whiting is reportedly planning to introduce a similar bill in Iowa, and on January 14 three South Carolina legislators filed a similar bill.

According to The National Pulse, on January 11 US House Democrats introduced a resolution that was immediately referred to the House Judiciary Committee. The resolution proposes a constitutional amendment that would abolish the electoral college and provide for the direct election of the President and Vice President.
The report claims the bill was authored by 8 House Democrats. It is reported to seek the addition of 7 new sections to the Constitution. Read the proposal HERE.

On January 9 Ramon Buhler announced that the Republican National Committee (RNC) has endorsed the proposed Keep Nine Amendment (SJRes 76), the Congressional proposal to make nine Justices the constitutionally approved number to serve on the high court. He reports backing by 15 US Senators and 37 Congress members so far.
The American Legislative Exchange Council (ALEC) has developed a model application for state legislators to use to seek an Article V convention of the states that would propose the Keep Nine Amendment. A copy of that model application is HERE.

SIDE NOTE: On January 27 Buhler reported that Google had blocked the ads placed by the Keep Nine campaign.

Constitutional amendment expert Gregory Watson says the ERA may have new life. In an article published on January 11 by Texas Scorecard, Watson takes recent election results into consideration and concludes, “efforts on the political left to jury-rig the long-expired 1972 proposed Equal Rights Amendment (ERA) into the United States Constitution [might yet be accomplished] by highly questionable means.”
In his article Watson outlines the steps that ERA advocates have taken in recent years, and the steps current members of Congress are taking. Those actions still don’t deal with the question of several states having rescinded earlier ratifications. Read his analysis HERE.

Meanwhile, on January 22 the Outside the Beltway blog published a related story by James Joyner entitled Congress Pushing to ‘Ratify’ ERA by Fiat. He points out that a bipartisan effort in the US Senate is supporting the US House drive to eliminate the 7-year (later extended an additional 3 years) deadline for ratifying the 49-year-old ERA proposal. Read it HERE.

Advancing the American Voice (4th in a 4-part series)
Presented by the State Legislators Article V Caucus & Path to Reform
Tuesday, February 23 – 8 PM Eastern Time
Register HERE
The January webinar featured Prof. Larry Lessig, Senator Jim Rubens, Senator Kevin Lundberg and Senator Neal Schuerer. View it HERE.

The Principle of Federalism is Getting More Attention –
Several writers have dealt with the topic of federalism over the past month.

On January 8 former ND state representative Bette Grande (current CEO of the Roughrider Policy Center) wrote in Inform (an affiliate of WDAY – Fargo, ND) expressing amazement that Congress suddenly had so many strict constitutionalists as it dealt with issues surrounding certification of electors.
Her piece is entitled Federalism is the only answer. She says, “Federalism, recognizing the authority and autonomy of each state, is the only answer for our divided republic. And, the Constitution is not a convenience to be pulled out only when it suits.” Read her piece HERE.

Last month this newsletter led with an article wherein the author claimed that America’s federalism was in tatters. Constitutional expert Rob Natelson responded, challenging the writer’s premise.
“You mentioned an article in Governing Magazine claiming federalism is in tatters. One of the author’s reasons is that ‘the federal government has dumped many of its public health responsibilities for COVID-19 onto the states.’

“The author should read the Constitution: Outside of federal enclaves and territories and cross-border activities, the federal government has almost no public health responsibilities. This is a classic example of an area the Constitution reserves to the states. As Chief Justice John Marshall wrote in Gibbons v. Ogden, ‘health laws of every description’ are almost entirely a state responsibility.

“The author is correct that federalism is in tatters. But it’s because the feds are meddling with far too much, not that they are doing too little.”

It comes as no surprise that Dr. Anthony Fauci believes “federalism has undermined America’s response to the pandemic.” Jacob Sullum writes about Fauci’s views in Reason, HERE.

During the past few months federalism adherents throughout the world watched how America honored the federalism principles embodied in the US Constitution. Vijay Kumar wrote Federalism As A Lynchpin Of Democracy – Lesson From The US Election for Mainstream Weekly, a publication out of New Delhi, India.
Mr. Kumar wrote, “The system of securing majority in [the] electoral college and its primacy over popular vote may sound odd and incongruous to outside observers, but the principle of federalism embodied in [the] US Constitution mandated the equal say of even the smallest States in the election of its President.” Then he recounted some of the shortcomings in India’s federalist system. Read his thoughts HERE.

“Rediscovering federalism might be the country’s only sustainable way to reduce political tensions,” says Victor Joecks in a January 9 piece for the Las Vegas Review-Journal.
Joecks argues, “The easiest way to lower the political temperature is to make politics less important.” He also says, “The genius of federalism is that it allows people in states with radically different policies to live in relative harmony. Embracing the concept would lower the political temperature. I wish I could say I was optimistic.” Read his thoughts HERE.

Fittingly, on January 15 the Providence (RI) Journal carried an opinion piece by Kenneth F. Payne under the heading Grateful for American federalism. He says, “At the core of the Constitution are a recognition of the need for power and a distrust of consolidated power — the Constitution distributes powers among branches and levels of government.”
Then he concludes by saying, “[L]et us accept that there is no perfect past to which we can return and there is no ideal future into which we can progress, and that thus we are left with an ever-messy present and an ongoing obligation to create a more perfect union. Ah, American federalism, an unending effort for us [to] embrace with gratitude.” Read his thoughts HERE.

Natelson: Election Integrity is the Real Issue –
In an extensive five-part opinion piece published by Epoch Times on January 11, 13, 18, 21 and 25, constitutional scholar Rob Natelson challenges readers under the headline Don’t Be Fooled! Don’t Let Them Divert Us From Ensuring Electoral Integrity!

Natelson says the furor over the January 6 incident at the Capitol building is a “diversion.” He says, “The goals of this diversion apparently are to (1) move public attention away from election irregularities and the legitimacy of the Biden presidency, (2) forestall honest investigation into those irregularities, and (3) prevent corrective action.”

He warns, “we mustn’t be diverted.” His series lays out a proposed two-year agenda for concerned Americans. He says, “If adopted, these changes will reduce greatly many of the problems that bedeviled the 2020 election. They also will begin to ameliorate dysfunctions and divisions in our political system.” Read his detailed thoughts: PART 1, PART 2, PART 3, PART 4 and PART 5. (requires an Epoch subscription, but worth the price).

Senator Lundberg: Will Freedom Be Lost on Our Watch? –
Former Colorado Senator Kevin Lundberg, in an end-of-year edition of his personal newsletter, wrote about irregularities and “corruption” in the November 2020 election. He particularly questioned what he believes was failure of SCOTUS when it refused to address election-related issues.

Lundberg said, “This republic is at a critical point in history. As President Reagan reminded us, just about one generation ago: ‘Freedom is never more than one generation away from extinction’.”

Will One or More States Secede from the United States? –
The possibility of one or more states seceding from the American union of states is getting more and more ink these days. Under the heading: Is It Time for Secession? Prescott (AZ) Enews carried a lengthy piece by Jared Taylor.

Taylor reviewed the book American Secession by Francis Herbert Buckley (a lawyer and academic who has taught at McGill and is now at George Mason School of Law). Taylor reports Buckley’s views: “In all the ways that matter, save for the naked force of the law, we are already divided into two nations just as much as in 1861.” Buckley writes, “The contempt for opponents, the Twitter mobs, online shaming and no-platforming, the growing tolerance of violence — it all suggests we would be happier in separate countries.”

Taylor’s piece even includes a map that purports to show how the US could be broken into nine “republics,” or “kingdoms.” The article is a worthwhile read, even if it is just to give perspective on the potential outcome of division within America. Find it HERE.

Forbes published a different perspective on the question on secession under the heading Federalism, Not Breakup, written by Nathan Lewis. For those who think secession by California might not be a bad idea, Lewis has a warning about this “Crisis Era.”

Lewis says, “We all know the Federal Government is not going to reform itself, until it needs to. But, that time may not be that far off. Breaking up the United States is not a solution; just one step in a larger disaster.” Read his thoughtful piece HERE.

According to a report by BizPacReview, Texas State Representative Kyle Biedermann told NewsMax he plans to lead Texas out of the Union. He was quoted as saying, “This is about the beginning of a process, an act, just like Brexit,” referencing Great Britain’s separation from the European Union. He said, “Brexit was a vote of the people and then five years of a process” to gradually separate. Read the report HERE.

Good Related Read –
On January 7 the Patriot Post carried an opinion piece by Paul S. Gardiner headlined State Legislators Hold the Key to Refreshing America’s ‘Tree of Liberty’.
Gardiner stresses that it is State legislators who have the task to “ensure that open and honest national elections (for federal government officials) take place in all 50 states.” Read his piece HERE.

Words to think about…
(U.S. Constitution, Amendment X)
in accordance with this guiding principle from the U.S. Supreme Court
in New York v. United States, 505 U.S. 144 (1992):
“The question is not what power
the Federal Government ought to have
but what powers in fact have been given by the people.”
505 U.S. at 157 (internal citation omitted)