Why the States Need to use the Article V Convention Process to Curb Washington DC’s Abuse of Power

A.

America is Headed for a Financial Disaster

In 2010, the Congressional Research Service reported on the generational impact of this approach to entitlements and debt.

If it is assumed that all legally promised benefits will be met in the future, then large payroll tax increases will be necessary. Thus, future generations would be forced to consume fewer goods and services because a larger part of their income would be taxed and transferred to Social Security recipients.

Even President Obama has said:

We have an obligation to future generations to address our long-term, structural deficits, which threaten to hobble our economy and leave our children and grandchildren with a mountain of debt.

Yet, politicians of all stripes continue to spend money as if none of these debt problems existed.

Of all the outrageous expenditures that you can imagination—just listen to this one. In fiscal year 2010, the United States gave away $1.4 billion to countries like China, Mexico, Egypt, and others all of whom own at least $10 billion each in our treasury bonds.   China owns over $1.2 trillion itself in our treasury bonds. 

Giving money away for free to the nations that own our debt instruments, is like giving your banker a large gift while he still holds your unpaid mortgage. 

Again, the Congressional Research Service says:

The current consensus among economists is that the burden of the national debt is largely shifted forward to future generations. However, the burden imposed by the national debt does not arise from debt per se, but from budget deficits that gives rise to a national debt.

Here is the plain reality.  Entitlement programs are designed to buy the votes of those who receive the entitlements.  Few politicians dare to suggest that we do anything about all of these federal entitlements lest they face a huge backlash at the ballot box.  Do voters actually realize the burden they are placing on their grandchildren?

What grandparent can look his great grandchild squarely in the eyes and say, “I want you to pay 50% of your income to pay off our spending spree”? 

George Washington had a great deal to say about the nation’s duty regarding debt.

No pecuniary consideration is more urgent than the regular redemption and discharge of the public debt; on none can delay be more injurious, or an economy of time more valuable.

Indeed, whatsoever is unfinished of our system of public credit cannot be benefitted by procrastination; and as far as may be practicable, we ought to place that credit on grounds which cannot be disturbed, and to prevent that progressive accumulation of debt which must ultimately endanger all governments.

Why do inter-generational debts ultimately endanger all governments?  It is a basic truth that at some point the people will say—we will no longer be enslaved for the spending of our ancestors.  When they reach this point, the government will be overthrown.

Washington correctly understood the unconscionable nature of saddling future generations with today’s debt.

As a very important source of strength and security, cherish public credit. One method of preserving it is to use it as sparingly as possible, avoiding occasions of expense by cultivating peace, but remembering also that timely disbursements to prepare for danger frequently prevent much greater disbursements to repel it; avoiding likewise the accumulation of debt, not only by shunning occasions of expense, but by vigorous exertions in time of peace to discharge the debts which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burden which we ourselves ought to bear.

Thomas Jefferson invoked the principles of republicanism as a core criticism of debt.  “I…place economy among the first and most important of republican virtues, and public debt as the greatest of the dangers to be feared.”

Jefferson also made it plain that the ultimate alternative to a crushing debt is a revolution—which in our case means rejection of the Constitution itself.

But if the debt should once more be swelled to a formidable size, its entire discharge will be despaired of, and we shall be committed to the English career of debt, corruption, and rottenness, closing with revolution. The discharge of the debt, therefore, is vital to the destinies of our government.”

Finally, Jefferson spoke the truth when he said:

“The principle of spending money to be paid by posterity, under the name of funding, is but swindling futurity on a large scale.”

We are currently spending $3.7 trillion per year while collecting $2.3 trillion in taxes. We are spending $2.48 trillion per year on entitlement programs. It is clear that entitlement spending is the engine for the ever-worsening financial disaster.

But labeling the current debt as nearly $17 trillion gives us an incomplete picture. We are entering into contracts for pensions and medical care that have already been earned, but the payments are not yet due.  It is like buying a car for $40,000 with no money down and with the promise of making no payments until next January.  The day you bought the car you were in debt for the entire amount of the loan–$40,000–even though the payments were not yet due.

Our government has incurred trillions of dollars in additional debt in just this fashion and none of these numbers reflect those additional obligations.  We are in debt at least $40 trillion and some estimates are as high as $200 trillion—for social security, Medicare, and other entitlement programs.  The amount varies depending on which programs are included in the calculations. These are benefits already earned—but yet to be paid—just like that car loan. 

Our nation is not going to survive if we continue to proceed down these paths. No matter how much we tax the rich, we cannot spend one-third more than we receive on a perpetual basis.

A generation will arise which says, “Enough!” They will throw off the debt and the government that obligated them to pay it.

Yes, Congress should do something to stop this. But, the plain fact is that Congress will not do so. There must be a structural change that forbids the federal government from reckless spending.

It is time for the adults (the States) to take away the credit card from the reckless teenagers (Congress) before they destroy the family forever.

B.

Washington Will Never Curb the Power of Washington

I have calculated the national debt on a period by period basis using three variables: control of the White House, control of the House, and control of the Senate. We start at the beginning of Reagan’s presidency. I use fiscal year endpoints except for the very last period (since this fiscal year has not yet ended).

From 1981 through 1987, a Republican (Reagan) was President and there was a GOP majority in the Senate and a Democratic majority in the House. The national debt went from $1.38 trillion to $2.25 trillion. The average increase in debt was $145 billion per year.

From 1987 through 1993, a Republican (Reagan/Bush I) was President and there was a Democratic majority in both the House and Senate. The national debt went from $2.25 trillion to $4.41 trillion. The average increase in debt was $360 billion per year.

From 1993 through 1995, a Democrat (Clinton) was President and there was a Democratic majority in both the House and Senate. The national debt went from $4.41 trillion to $4.97 trillion. The average increase in debt was $280 billion per year.

From 1995 through 2001, a Democrat (Clinton) was President and there was a GOP majority in both the House and Senate. The national debt went from $4.97 trillion to $5.81 trillion. The average increase in debt was $140 billion per year.

From 2001 through 2003, a Republican (Bush II) was President and there was a GOP majority in the House and an evenly divided Senate. The national debt went from $5.81 trillion to $6.78 trillion. The average increase in debt was $485 billion per year.

From 2003-2007, a Republican (Bush II) was President and there was a GOP majority in the House and Senate. The national debt went from $6.78 trillion to $9.01 trillion. The average increase in debt was $557.5 billion per year.

From 2007-2009, a Republican (Bush II) was President and there was a Democratic majority in the House and Senate. The national debt went from $9.01 trillion to $11.91 trillion. The average increase in debt was $1.45 trillion per year.

From 2009-2011, a Democrat (Obama) was President and there was a Democratic majority in both Houses. The national debt went from $11.91 trillion to $14.02 trillion. The average increase in debt was $1.05 trillion per year.

From 2011 to date (not a complete cycle yet), a Democrat (Obama was President and there was a Democratic majority in the Senate and a Republican majority in the House. The national debt went from $14.02 trillion to $16.25 trillion. The average increase in debt was $1.115 trillion per year (although this number will increase when the year ends.)

Both parties have incurred enormous amounts of debt. And both parties have had the opportunity to introduce structural changes to the size and scope of government in Washington DC. The only change has been to continually expand the practice of overspending.

It is obvious that Washington DC will never curb the power of Washington DC no matter which party is in control. The adults (the states) must take the credit card away from the reckless teenagers (Washington DC) before this nation is ruined beyond repair.

C. 

The Founders gave the states the power to act alone to rein in abuses of power by Congress and the federal government.

Article V of the Constitution provides:

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;

When 34 states apply for a drafting convention, Congress has no substantive discretion. It must name the time and place for a convention to be held. The States possess the complete ability to ensure that proper amendments are proposed and ratified to curb the abusive power of the federal government.

This is just how James Madison expected this power to be employed: “It [Article V] 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.”

State legislatures have the power to stop the abuse of power by Washington DC. Our Republic is in jeopardy from exactly this form of abuse. It is imperative that the States step up to the duty placed upon their shoulders by the Founding generation.

D.

The process laid out by Article V is safe and will not lead to the adoption of any amendment beyond the purpose of the convention application

There have been many people who contend that an Article V convention called by the States to draft amendments would open the door to a runaway convention which could very well lead to the entire dismantling of our current Constitution.

This argument is normally premised on the allegation that the first Constitutional Convention was a “runaway” convention and, in fact, the Constitution itself was illegally adopted. This argument is both historically inaccurate and facially illogical. Let’s deal with the logic first.

The lack of logic can be reduced to the following bumper sticker version of this argument: “Preserve our illegally adopted Constitution—Stop the Con Con.”

If the Constitution was made illegally, why bother saving it? If Founders were scoundrels flouting the existing law, why should we want to preserve their work? It makes no sense to both attack the Constitutional Convention and then act like the Constitution is sacred and should never be changed.

The truth is that the Constitution was not adopted illegally—and, those of us who are loyal to the original meaning of the Constitution should not be afraid of using the process that the Founders gave the States to stop abuses of federal power.

I will demonstrate:

1. The Constitution was not adopted illegally and thus there is no historical precedent of a “runaway convention.”

2. History has demonstrated that applications for a convention only count when there is an agreement for the purpose for the call of the convention.

3. The call for a Convention is legally binding and judicially enforceable.

4. That 13 states can with absolute certainty stop the ratification of any amendment proposed by a runaway convention.

5. The dangers of a runaway convention—which are essentially zero—pale in comparison to the dangers of allowing the federal government to continue to abuse its power.

We consider each argument briefly:

1.

The Constitution was not adopted illegally and thus there is

No historical precedent of a “runaway convention”

The Articles of Confederation required any amendments to the Articles to “be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.” 

The argument that the Constitution was illegally adopted must be judged by these standards contained in the Articles of Confederation.

We must keep in mind that the power to “formally” propose amendments to the Articles of Confederation resided in Congress. The Constitutional Convention was a purely advisory body with no formal power. The resolution which brought the convention “of the states” to make recommendations to the Congress and ultimately to the state legislatures reads as follows:

Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.

In the preceding paragraph Congress said: “experience hath evinced that there are defects in the present Confederation.”  Much is made of the fact that the name of the document was changed from “The Articles of Confederation” to the “Constitution of the United States.” A careful reader will note, however, that this call from Congress stated its purpose was to “render the federal constitution adequate to the exigencies of Government & the preservation of the Union.”

In other words, the convention of the states was asked to propose revisions to the federal constitution to make it adequate.

There was no limitation placed on the number of amendments to be proposed. Nor was there any instruction to send forward a series of amendments that could be considered one-by-one. Since it was a convention of the states, it was inherent that there was likely to be some give and take based on differing state interests—large states vs. small states, for example. It was not at all unexpected nor was it contrary to the instructions given to the Convention that the proposed revisions would come forward as a package deal based on a series of political compromises. And, of course, this is exactly what happened.

But, remember, this Convention had only advisory power. The power to formally propose amendments to the Articles of Confederation lay in Congress.

The formal transmittal letter of the Constitution to Congress says: “Resolved that the proceeding Constitution be laid before the United States in Congress assembled.” That means that the Convention was turning over its work-product to Congress and the “ball” was in Congress’ court.  The recognition of Congress’ formal authority is clear in the next phrase which says “it is the opinion of this Convention” that a new process should be employed to obtain ratification “under the recommendation of its Legislature.”

Thus, the Convention was proposing the state convention process for ratification—while recognizing that it would first be required to obtain the consent of Congress and the state legislatures. This, of course, is exactly what the Articles of Confederation’s amending process required—approval of Congress first and then, all of the state legislatures.

Those who make the argument that the Constitutional Convention was an illegal proceeding gloss over these details and leave the general impression that the Constitution sprang out of Philadelphia and went straight to the state ratification conventions. This would have been an extra-legal process—an act of political revolution. But while our Founders were innovative, they were reluctant to ever use revolutionary processes. They acted carefully and according to the existing rules.

Congress approved the submission of this this wholesale revision of the “federal constitution” (as they themselves called the Articles) to the state legislatures with the request to use the new process.

It is important to note that Congress did not submit the Constitution directly to the state conventions. Rather, consideration of the Constitution was submitted to the state legislatures with the request that these legislatures approve this new process for ratification.

The state legislatures were fully within their authority under the Articles of Confederation to refuse to approve this new process. But, in fact, all thirteen state legislatures approved this new process by calling, within their respective states, a convention for the purpose of considering the ratification of this revised Constitution.

Yes, I said all thirteen state legislatures approved this process. There are those who point to the fact that only 11 states ratified the Constitution prior to the commencement of government under the Constitution. Such an observation confuses the roles of the state “legislatures” with the role of the state “ratification conventions.” How many state legislatures approved the new process? 13. How many state ratification conventions approved the new Constitution prior to the commencement of government? 11.

Thus, the process required by the Articles of Confederation were followed precisely. Congress approved the new process for ratification. All 13 state legislatures approved the new process for ratification. Thus, in effect, an amendment to the amending process contained in the Articles was approved by Congress and all 13 states. They followed the rules of the Articles with precision.

The process was not illegal. There was no runaway convention. Our Constitution was legally adopted.

Having full answered this historical slur on the integrity of the Constitution, we now turn to the remaining issues which discuss the ability of the states to call a convention for a single or narrow purpose.

2.

History has demonstrated that applications for a convention only count when there is an agreement for the purpose for the call of the convention

There have been 400 applications for an Article V convention passed by state legislatures from 1788 to 2012. There have been requests for conventions a wide variety of purposes:

  • A general convention
  • Apportionment issues
  • Right to life
  • Balancing the federal budget
  • Anti-polygamy
  • State control of education
  • Repeal of the 16th Amendment
  • Creation of a limited World Federal Government

Yes, astonishingly, in the 1940s six state legislatures (Florida, California, Connecticut, Maine, New Jersey, and North Carolina) all applied for a convention to propose an amendment creating a limited World Federal Government. Three of these resolutions (California, Connecticut, and North Carolina) have never been rescinded.

Professor Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677 (1993), has created what could be fairly called the most stringent criteria for counting and aggregating all 400 of this applications. If his criteria are followed, there are currently valid applications for an Article V convention from 37 state legislatures. This is more than enough to require Congress to call a convention.

Since Congress must call an Article V convention when two-thirds of the States make application, we must conclude that the historical practice has developed to require an agreement on the subject matter for the convention in order to call a convention.

Thus, the rule of history is this: When two-thirds of the legislatures of the several states apply for a convention for the same purpose, then Congress must call such a convention.

Accordingly, Congress has definitively established that the Article V process can indeed be limited to a single subject. It necessarily follows that the same limitations apply to any convention called under Article V.  Both Congress and the Convention are limited by the purposes of the application. If 34 states apply for a general convention, the Congress must call a general convention and the Convention of the states may consider general revisions. But, if 34 states apply for a convention for a particular purpose, then Congress must call a convention for that purpose and the Convention is limited to that purpose.

The single subject rule applies throughout the process or it doesn’t apply to any part of the process. Since history has validated the single subject rule for the purposes of calling the convention, its validity has been established for all purposes.

3.

The call for a Convention is legally binding and judicially enforceable

The case that I litigated, Idaho v. Freeman, 507 F.Supp. 706 (D. Id. 1981), is the most recent and pertinent precedent. It dealt with the efforts by Congress to change the time for ratification for the Equal Rights Amendment from seven years to approximately ten and a half years (the new deadline was to a date certain). The original proposal from Congress contained a seven year deadline, not in the text of the proposed amendment, but in the resolving clauses of the proposal sent to the states. In simple terms, the seven year rule was in the procedural parts of the resolution, not in the substantive language.

The district court ruled that the procedural rules were binding and could not be changed. If Congress wanted to give the states additional time to ratify the amendment, then Congress would have to start from the beginning because the procedural components of a resolution under Article V were binding, could not be changed and were judicially enforceable.

The Supreme Court noted probable jurisdiction and placed our case on “hold” until the second time limit expired. Once it expired and 38 states had not ratified the ERA, the Supreme Court vacated the lower court decision on the basis of mootness.

Thus, the decision cannot be treated as binding precedent similar to a Supreme Court decision, but it is persuasive and it is the best evidence of the pertinent legal rules.

If states apply for an Article V Convention and if either Congress or a Convention seeks to use that application as the basis for proposing an amendment for a different purpose, such states (or their state legislators) would clearly have standing to file a challenge to the misuse of their application. Article V requires giving facial validity to all actions taken in the amending process and no entity (states, Congress, or a convention) may unilaterally make changes in the procedural rules.

4.

Thirteen states can with absolute certainty stop the ratification of any Amendment proposed by a runaway convention

In addition to legal challenges, the states possess the absolute power to defeat any improper proposal coming out of an Article V convention that proposes amendments outside of the scope of the call of the convention. Since three-fourths of the several states must approve any amendment; all that is necessary is for 13 states to say “no.”

Does anyone believe for a minute that we could not find 13 state legislatures to defeat an amendment to repeal the Second Amendment? Or to repeal the First Amendment? Or to make President Obama president for life? Or to repeal the Constitution? Or to institute communism?

Dream up your worst nightmare, and then ask “Can we find 13 states where we can defeat this proposal?”

And while you are contemplating the possibilities, remember all that is necessary is to defeat the proposed amendment in EITHER HOUSE of 13 state legislatures. The proponents of an amendment must get it ratified by both houses of 38 state legislatures. The opponents of an amendment win if they get either house in just 13 states to defeat the amendment.

Unless one resorts to the use of science fiction, there is no possibility that 38 states will ratify a crazy proposal. It is hard enough to get 38 states to ratify something reasonable—like a limitation on federal spending and debt—much less something crazy like repealing the First Amendment.

The states have the power and would use it to defeat any improper amendment coming from a convention.

5.

The dangers of a runaway convention—which are essentially zero—pale in Comparison to the dangers of allowing the federal government to continue to abuse its power

Congress and a series of presidents have given us a national debt that is going to drive this country into bankruptcy. In a generation, or two at the most, our children will be forced to decide between economic slavery to our debt or to a revolutionary overthrow of the government under the Constitution.

Would a runaway convention impose more debt than this? Would it pose any greater danger than this?

President Obama regularly decides that when Congress will not “cooperate” that he will impose his will through executive orders. The Founders would have called such actions absolute tyranny.

Would a runaway convention impose more tyranny that exists today from such executive orders?

The Supreme Court has used legislative power to impose its will on the nation in the guise of constitutional interpretation. It imposed an abortion policy on the entire nation and it is poised to do the same thing on the issue of same-sex marriage.

Would a runaway convention impose greater tyranny and immorality than has come from the Supreme Court?

The plain fact is that Washington DC poses the greatest threats to our liberty, our morality, and the very existence of our country.

There is talk of secession and nullification. Neither of these processes is likely to gain any following outside of internet activity. No Governor, nor any state is likely to engage in such actions.

And we must remember that secession is a decision to leave the government that exists under the Constitution. And, yes, we can argue on a moral plain that the government that exists is not following the Constitution. But that is a moral argument, not a legal argument. Legally, secession is an act of revolution that may or may not be justified.

There is only one path available to us who want to preserve both liberty and the Constitution.

We must use the power of the states to apply for an Article V convention for the limited purpose of curbing the abuse of power by Washington DC.

The states have the authority and the duty to see to it that we stop Washington DC using the very process given to us by the Founders for this purpose.

Washington, Madison, Jefferson, and Patrick Henry would turn from us with disdain if they saw the Commonwealth of Virginia fail to do its duty to use a power it has under the Constitution to stop the abuse of our liberties and to stop the threat of the destruction of this Republic.

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