Tom Deweese

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Constitutional Convention Can Not Be Controlled

by Tom DeWeese


As Americans become more frightened by the disastrous direction our government is taking, and more frustrated that elected representatives are not listening to them, the demand is growing for drastic action. In recent months the action most heard in state houses across the nation is a rising call for a new Constitutional Convention (Con Con).
 
Supporters somehow think a Con Con is the solution to saving our Republic. They want to amend the Constitution to force a balance budget. They want to shore up ambiguous language to make the meaning clear. They want to assure there is no doubt what America is and should be. For most pushing such an agenda, their intentions are honest.
 
Their solution will be a disaster for one simple reason – no one can control a Constitutional Convent. It doesn't matter how well intentioned its purpose. It doesn't matter how well planned. It doesn't matter what the actual resolution says and the people think they are approving. A Con Con has no oversight or rules other than those made by the actual participating delegates themselves. There are no rules for selecting delegates.
 
Once a ConCon is called for by the legal number of states, as laid out in Article V of the Constitution, It is the duty of Congress to call for one. Period. That's as far as it goes. In this day, when Nancy Pelosi, as Speaker of the House was able to twist enough arms to force through the Health care plan against the wishes of a strong majority of Americas; when the current Congress was able to flimflam the American people into believing it had really cut the budget; when these same people are the ones who will set the rules for a Con Con, from establishing the delegate- selection process, to dictating who will be qualified to be delegates, how on earth can anyone support such a disaster in the making. A Con Con will result in one thing- our precious Constitution laid out on an operating table to be dissected and bludgeoned by Dr. Jekyll.
 
But still, a growing number of “conservative” leaders across the country and in the media are joining the chorus for the need for a ConCon. Some actually claim that they aren‟t calling for an out and out Constitutional Convention, rather for an “Article V Convention. There is no such distinction. To suggest that some other category exists that isn‟t as serious or dangerous than a Con Con is simply an untruth.
 
Here are the facts. The main groups pushing for a Con Con are the American Legislative Exchange Council (ALEC), a conservative association of state legislators; and a new group calling itself the 10 Amendments for Freedom, Inc, chaired by William Fruth, President of POLICOM Corporation, which provides independent economics research.
 
While ALEC is working behind the scenes to build support for a Con Con among state legislators, Fruth and his 10 Amendments for Freedom group has moved into the public eye to sell the Con Con idea to mainstream America. In March, 2010, Fruth kicked off his campaign by mailing out a slick, expensive package to conservative leaders and to over 7,000 state legislators. The package contained a book written by Fruth entitled “10 Amendments for Freedom.”
In the book, Fruth lays out an argument for the need for, not just a balanced budget amendment, but a total package of 10 Amendments to the Constitution including, the balanced budget; repay the national debt in 50; government transparency; line item veto; term limits for Congress; control illegal immigration; English-speaking nation; no foreign law shall bind us; government restraint (preventing the the Federal Government from growth beyond constitutional powers; and finally, an amendment declaring “in God we trust.” Of course, there is no doubt that these amendments have great appeal for most conservatives, answering their growing frustration and fear of government expansion.
 
Arguing that Congress “will not likely take any action to cause the 10 Amendments for Freedom to become law of the land,” Fruth calls for all ten amendments to be packaged by state legislatures to be passed in a resolution calling for a Constitutional Convention. His package would include specific instructions to Congress as to how the delegates would be selected and outlining rules that would be enforced to assure only the ten amendments would be voted on.
Arguing the advantages of the Con Con, Fruth says, “Can you imagine the excitement in the nation leading up to the Convention? Schools will have to dust off history books which teach how our nation was founded. Many people for the first time will read the Constitution. The issue will be discussed at length, exposing what happened to our country over the years.”
 
Fruth then scoffs at our fears of a Con Con and efforts to stop it. He says, “Simply, it is not reason” any recommended changes must be approved by three-fourths of the states.
 
These are the arguments now being presented to every single state legislator and Governor in the nation as Fruth and ALEC put on a full-court-press to call for a Constitutional Convention. While the intention may be an honest desire to reign in the power of government, the fact remains that every one of these arguments for a Con Con is wrong.
 
The fact is, once 34 states petition Congress to convene a Constitutional Convention, the matter is completely out of the States‟ hands. There is absolutely no ability to control what the delegates do in the convention. Attempting to instruct delegates to discuss only a specific issue like a balanced budget – or the whole package offered by the 10 Amendments for Freedom group — is absolutely impossible. Instead, once the convention starts, the delegates become super delegates which can take any action they desire concerning the Constitution. In short, at the convention the Constitution can be literally change any section, or even the entire document if they desire.
 
What proof do I offer? Here are the exact words of Article V of the Constitution: “…on the application of the Legislatures of two thirds of the several States, (Congress) shall call a Convention for proposing Amendments, which…shall be valid to all Intents and Purposes, when ratified by the Legislatures of three fourths of the several States.”
 
Article V gives absolutely no guidelines as to how it will be run, how delegates can be selected and who can do the selecting. Once the 34 states make the request, the entire matter is in the hands of Congress to decide. It does not matter if the states passed resolutions as Fruth proposes, containing absolute guidelines for delegate selection. The Constitution provides no rules – it is up to Congress to decide how delegates are selected and what qualifications they will have. The guidelines proposed by Fruthable to assume there can be enough delegates sent to a convention who will propose amendments which „repeal the bill of rights‟ or „legalize socialism.‟ Even if they did, the amendments would never be ratified,” concludes Fruth.
 
Anticipating opposition to his scheme for a Con Con, Fruth says that those who opposed the effort in the 1980‟s, to call for a Con Con for a balanced budget amendment, told the American people that the delegates at the convention can “change the Constitution any way they want.” Argues Fruth, “We know that is not true.” He says, “it is both irresponsible and disingenuous for anyone to publicly say that the convention can change the Constitution.” And he says, “any recommended changes must be approved by three-fourths of the states.
 
These are the arguments now being presented to every single state legislator and Governor in the nation as Fruth and ALEC put on a full-court-press to call for a Constitutional Convention. While the intention may be an honest desire to reign in the power of government, the fact remains that every one of these arguments for a Con Con is wrong.
 
The fact is, once 34 states petition Congress to convene a Constitutional Convention, the matter is completely out of the States‟ hands. There is absolutely no ability to control what the delegates do in the convention. Attempting to instruct delegates to discuss only a specific issue like a balanced budget – or the whole package offered by the 10 Amendments for Freedom group — is absolutely impossible. Instead, once the convention starts, the delegates become super delegates which can take any action they desire concerning the Constitution. In short, at the convention the Constitution can be literally change any section, or even the entire document if they desire.

What proof do I offer? Here are the exact words of Article V of the Constitution: “…on the application of the Legislatures of two thirds of the several States, (Congress) shall call a Convention for proposing Amendments, which…shall be valid to all Intents and Purposes, when ratified by the Legislatures of three fourths of the several States.”
 
Article V gives absolutely no guidelines as to how it will be run, how delegates can be selected and who can do the selecting. Once the 34 states make the request, the entire matter is in the hands of Congress to decide. It does not matter if the states passed resolutions as Fruth proposes, containing absolute guidelines for delegate selection. The Constitution provides no rules – it is up to Congress to decide how delegates are selected and what qualifications they will have. The guidelines proposed by Fruth carry absolutely no weight in the final process – even if every state passes the exact same resolution including those rules. Again, Article V simply says that when 34 states have called for a Con Con the Congress “shall call a Convention…” Period. And there is more legal proof in support of the argument that delegates are not bound by an instructions or resolutions from the states.
 
First, of course, is the famous letter written by former Supreme Court Justice Warren Burger to Phyllis Schlafly, President of Eagle Forum. In the letter Burger writes, “… there is no effective way to limit or muzzle the actions of a Constitutional Convention. The convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or to one issue, but there is no way to assure that the convention would obey. After a convention is convened, it will be too late to stop the convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the confederated Congress…”
 
And there is more legal documentation proving that Congress or the states can control the agenda of a Con Con. Corpus Jurus Secundum is a compilation of State Supreme Court findings. The following is the collection of findings regarding the unlimited power of the delegates attending a Con Con. (From Corpus Jurus Secundum 16 C.J.S 9) “The members of a Constitutional Convention are the direct representatives of the people (1) and, as such, they may exercise all sovereign powers that are vesting in the people of the state. (2) They derive their powers, not from the legislature, but from the people: (3) And, hence, their power may not in any respect be limited or restrained by the legislature. Under this view, it is a Legislative Body of the Highest Order (4) and may not only frame, but may also enact and promulgate, Constitution. (5). The foot- note numbers after the citation quoted reference the particular cases from which the citations were made. (1) Mississippi (1892) Sproule v Fredericks (11 So. 472); (2) Iowa (1883) Koehler v Hill (14N.W. 738); (3) West Virginia (1873) Loomis v Jackson (6 W. Va. 613); (4) Oklahoma (1907) Frantz v Autry (91 p. 193); (5) Texas (1912) Cox v Robison (150 S.W. 1149).
 
Clearly, the position put forth by Fruth, and ALEC, that state legislatures can pass a resolution dictating the rules of the Con Con is simply wrong.
 
Delegate selection is another dangerous trap waiting to spring. Again, Article V provides no guidelines. The process is left for Congress to decide. That means the current Congress could control the entire delegate selection. Under the rules that Congress could set, States may not even be represented. If the states are allowed to choose delegates, then what would be the method? Again, Congress will decide. Will the governor or the state legislature appoint delegates? Or could it be a bicameral panel or blue ribbon commission? Or could it be a plebecite – a vote of the people? If so, then who would be eligible to vote? Would it be all eligible voters? Or taxpayers only? Or would we possibly, in the interest of “enfranchisement,” allow all citizens, and potentially foreign nationals (illegal immigrants) to vote for this “special election?” There are no guidelines and anything is possible.
 
And what would be the qualifications to be a delegate? Would it be exclusively lawyers? A mix of professionals? So-called “proportional representation” of all special interest groups – NGO‟s? Will some be excluded because of “extreme” convictions? Of course, according to the Federal Department of Homeland Security, “extreme convictions” includes those who want to protect the Constitution. So, what will the criteria for eligible delegates be? All of these choices would be made by Congress.
 
But again, none of that will matter, according to those calling for the Con Con. William Fruth argues that no matter what such a convention does, it still must be ratified by two- thirds of the states, making it very difficult to do bad things against the will of the people. A history lesson is in order.
 
There has been only one Constitutional Convention in the history of the nation – that was in 1787. At the time, the nation was held together by the Articles of Confederation. The states were having a difficult time performing commerce among themselves. So it was decided to hold a Constitutional Convention to simply discuss how interstate commerce might be better organized. As the delegates were selected, delegations from a majority of states were given specific orders by their states to discuss nothing else beyond the commerce issue.
 
However, some delegates including James Madison had a very specific agenda planned for the convention and as soon as the delegates arrived at Independence Hall in Philadelphia, they closed and locked the door, pulled down the shades and met in secret for a month. When they were finished, they had created an entirely new nation. We were very lucky that the convention was attended by men like Ben Franklin and George Washington and Madison. They produced the most magnificent document ever devised for the governance of man.
 
Today, we have entrenched power forces led by the likes of Barack Obama, Nancy Pelosi and Harry Reid.
 
And we have notoriously weak leaders like current House Speaker John Boehner and Senate Minority Leader Mitch McConnell who rarely miss a good compromise to keep the peace. These are the people who will decide the rules for the convention, including delegate selection. Do you trust them to follow the rules dictated by state legislatures? Do you think Pelosi and Reid would pass up an opportunity to set their own rules to guarantee a Constitution to their liking?
 
And there is more. Concerning the argument that no matter what the delegates produce, the states still must ratify it – thus serving as a safeguard to tomfoolery, consider this fact: The Articles of Confederation required that any changes be ratified by 100% of the states. That was the document that was the law of the land – until something else was put into place. But, when the new Constitution was put to the states for a vote of ratification, suddenly they needed only two thirds to approve it. Why? The fact is, Article V of the new Constitution was used – even before the Constitution which contained it was approved. Now, what do you think Reid and Obama and company would do with that precedent? What if the new document produced by the Con Con said ratification only required a vote of Congress – or of some special commission? The precedent of 1787 says that could happen. So much for protection by the states.
 
And rather than an excitement in the nation with a rebirth of study of the Constitution, as Furth envisions, there would in fact be a long, hard, ugly and expensive battle over the process, guaranteed to leave the nation split along ideological lines. It‟s not difficult to envision civil unrest, riots or even civil war as a result of any re-writing of the current Constitution.
 
These are the reasons why I, and many others around the nation, adamantly oppose a Constitutional Convention at this time. We fear a Con Con because the subject matter cannot be controlled. And if the worst happens, there is no guarantee that we can stop ratification. There has never been a worse time in the nation‟s history to consider changing this grand document. The Con Con delegates could literally put the Constitution on an operating table and use their scalpels to slice it up, creating an entirely new form of government. That new document, as precedence has shown, could be enforced without ratification by the states. Remember, our current Constitution was not ratified by the rules set forth in the Articles of Confederation, but by an Article V that wasn't yet law of the land. Now that the precedence is there, it can happen again. The Pelosi‟s of the nation, proven to have the power and the will to twist any issue or initiative as they desire, are rubbing their hands together at the prospectof a Con Con.
 
No doubt there is great need for several of the amendments Fruth and his group propose. But he seems to ignore the fact that there is a powerful, organized opposition. Again, I call your attention to the continuing battles over Health Care, taxes, illegal immigration and massive government spending. These are child‟s play compared to what will happen in a Con Con. Do Americans really want to risk that in these uncertain times? Every freedom-loving American must stand up against this misguided call for a Con Con. Tell your state legislators NO.

Tom DeWeese is one of the nation’s leading advocates of individual liberty, free enterprise, private property rights, personal privacy, back-to-basics education and American sovereignty and independence. Go to americanpolicy.org for more information

11 Comments in Response to

Comment by John Green
Entered on:

 So you're saying the states wont ratify only because of a tiny little absolution for the delegates and they'll recall into convention to change that?  You're high.

I've read Article V and there is NO LIMIT to what can happen inside the convention based on Article V.  IF 3/4 of the states ratify an entirely revised constitution who is going to stop them?  Article V?  And which court will hear that case ex post facto?  None.  Because the court that could have heard the case existed under the OLD constitution, not the new one.

I noted below you stated that "the constitution is dead."

I hate to tell you, but that very LITERALLY, not metaphorically, makes you a traitor and enemy of the United States.

You should get a grip of yourself and consider your words.

 

Comment by Kenneth Rineer
Entered on:

You keep saying "they can", but fail to demonstrate how or counter the above demonstration about how your statement is false."

1) I've answered your "statement is false" claim in my previous response.

2) I write they "can" because I cannot make the claim that they will. I am neither President of the Arizona Senate, Majority Whip, Speaker of the Arizona House nor House Majority Whip, so I cannot direct the debate nor have great influence over it. I cannot impart my will over theirs.

But I can (and have) speak before their committees and encourage them now is the time to Call the Article V Amendments Convention.

During the 2010 legislative session I spoke before the Senate Judiciary Committee and Senator Pearce and I had a small debate on this subject. Senator Pearce did not act as I requested; however, the following year, 2011 Session, he did introduce a bill which called upon Congress to pass an Amendment to the Constitution. This is a step in the right direction. His bill failed in the Senate because many good Senator’s were like you, scared to death that a request for a Call would spark a Constitutional Amendments Convention (We are two States short the last I looked). We aren't there yet because of the fear in so many, but my hope is that one day we will get there, fix what we must and then let the Congresscritters begin the tear-down process and the merry-go-round called life in America continues.

All that must be done for evil to prevail is for good men to do nothing.

Comment by Kenneth Rineer
Entered on:

 Dear #20933,

You wrote: "And when the delegates at the constitutional convention put into the new constitution that all such laws are null and void, that's the supreme law of the land."

When the delegates approve an amendment replacing the Constitution as you suggest, it does NOT becoming the law of the land until AFTER 3/4 of the States ratify it.

C'mon, please educate yourself on the process.

Comment by Kenneth Rineer
Entered on:

Please go back and read Article V and pay close attention to the words. Also read Federalist #85.

You could also read Nick Dranais' recent article on this subject for clarification if you dare.

http://www.freedomsphoenix.com/Article/098861-2011-11-02-four-reasons-for-the-right-to-embrace-not-fear-the.htm

And yes, using the terms Article V Amendments Convention is correct.

Embracing Fear rather than Strength can equal Weakness

Comment by John Green
Entered on:

 Oh I just noticed that you also falsely stated that the convention would be an "amendments convention".

a) there's an amendment process that doesn't require a convention.

b) once a convention is called there is nothing to restrain it only to amendments.

 

Comment by John Green
Entered on:

 And when the delegates at the constitutional convention put into the new constitution that all such laws are null and void, that's the supreme law of the land.

That proves you wrong.

You keep saying "they can", but fail to demonstrate how or counter the above demonstration about how your statement is false.

Please contribute some substance instead of further circular argumentation: "they can because they can."

Thanks.

Comment by Kenneth Rineer
Entered on:

In response to Comment # 20933, I do not believe the idea is absurd. Each State can hold their delegates accountable and subject to a felony if they should stray from the States directive - it can work. As you state, a new provision could be written in to an amendment to our Constitution, but it cannot override the State and it cannot be ex-post facto.

 

1) What is to stop the Western States, along with others, from coordinating their efforts to hold their delegates to account? Nothing.

 

2) It will still take 3/4 of the States to ratify any and all Amendments. Should the Constitution see a re-write that is obnoxious to our system of government, remove more power from the States than already exist, or any other reason which would give the People pause, they will not ratify the amendment(s).

 

What are you afraid of? Our Constitution is dead. Get over it. We must resuscitate it and the only way to do so is to hold an Article V Amendments Convention. If we wait any longer, there will be no Patriots left due to the indoctrination mills we run called government schools.

Fear is a controlling emotion, I've gotten over mine I hope you can get over yours.

Comment by John Green
Entered on:

 The comment by #03300 about states being able to control delegates is utterly FALSE.

How can AZ control DE's delegates for example?  It cannot.  It's absurd.  A state can only attempt to control ITS OWN delegates and not the delegates of the other 49 states.  The maximum a state's delegates could do is walk out.  They will not do that however, because the new constitution will then be written without their presence by the other 49 states.

Additionally, the new constitution could state that any sanctions, penalties or instructions directing the hands of delegates are hereby VOID and, voila, there are no sanctions or penalties to delegate behavior.

I do not know why Nick Drainias (#03300) and the Goldwater Institute are so hell-bent on destroying the US constitution that the founding fathers left us.  They want to establish a new nation and think the process can be controlled.

It's utterly laughable.  You cannot trust evil men to produce good.  Someone's got to go back to church. (Nick)

 

Comment by Kenneth Rineer
Entered on:

 We should inform ourselves about how an Article V Amendments Convention would be Called, who choses the Delegates, etc. Ignorance is our own worst enemy.

Comment by Terri Scheinuck
Entered on:

 Don't mess with it.

I don't trust anyone in Washington, to give them one iota more power, than they already have, which they have misused disgustingly and consistantly for decades.

Obama, amending the Constitution, a final and complete nightmare.  THE END.

Don't touch it...for now.

Comment by Kenneth Rineer
Entered on:

The State can control the delegates to an Article V Amendments Convention. They can do this by creating and passing a Statute making it a felony for any delegate to deviate from the intructions given to the Delegates by the State.

Do you think a Delegate, or Delegates would risk a felony? It is doubtful.

I believe with safeguards in place we can Call for an Article V Amendments Convention and succeed at making several very important and necessary changes to our present Constitution which is now over 3000 pages in length.

There is not any other way to undo over 200 years of Court created precedent and Congressional acts to restore the republic.


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