The Final Constitutional Option By Bob Berry, Regional Director for the Convention of States Project

Attachment: 3979/Article10-ThefinalOption_COSA102022.pdf

The problem, which  hardly needs stating,  is that the federal  government has become  the very monster the  Founders anticipated.  THE FINAL CONSTITUTIONAL OPTION    UPDATED NOVEMBER 2022   HAVING BEEN DORMANT for cen- turies, a potent section in the U.S. Consti- tution is now in the minds and on the lips  of a new generation of reformers who are  determined to keep the nation out of an  abyss. As America stares hard at the dark- ness ahead, the new reformers — support- ers of Convention of States Action — have  begun to popularize this forgotten consti- tutional provision that might well become  Official Washington’s undoing. The problem, which hardly needs stating,  is that the federal government has become  the very monster the Founders anticipated.  Quite likely, the beast we face is far beyond  anything that could have been imagined  by the founding generation. Even today it  is hard to adequately comprehend the om- nipresent and, thanks to the NSA, omni- scient federal menace that hangs over every  aspect of life in  21 st -century America. The Founders’ concern that power would  be consolidated at the federal level is dealt  with in Article V of the U.S. Constitution. Author Mark Levin, in his blockbuster  bestseller,  The Liberty Amendments: Re- storing the American Republic, based his  ideas for reform on this less well-known  means by which amendments may be  proposed — a process that entirely out- flanks Washington’s fixed fortifications.  Levin cogently argues that attempts at re- form from within Washington are futile. Obviously, what is needed is a way to trump  the Beltway ruling class from without.    Enter Article V, which prescribes the  amendment process. Article V establish- es the amendment process as a two-phase  affair: proposal, followed by ratification  of three-fourths of the states. The states  have no way to ratify that which has not  first been proposed. From the beginning,  the states have relied on congressional su- per-majorities to do the proposing. But the Founders knew that Congress would  be loath to propose anything that would  limit federal power, so they included a way  for the states to propose amendments in an  ad hoc assembly that Article V styles as “A  Convention for Proposing Amendments.” The idea of using the amendments con- vention assembly has surfaced from time  to time in U.S. history — most recently in  the  1980 s, with the movement to propose a  Balanced Budget Amendment (BBA). The  effort peaked with  33  states passing resolu- tions — just one shy of the required two- thirds of state legislatures, which would  have compelled Congress to issue a call for  the amendments convention. That’s when the effort took a bizarre detour  — into oblivion.The BBA advocates of the  1980s, including then-President Reagan,  were decidedly of the political right. The  last thing anyone in the movement expect- ed was for “friendlies” from elsewhere on  the right to object to the idea in near hyster- ics as a plot to render the Constitution null  and void. The unlikely opponents, while  not necessarily opposed to a BBA, con- demned in no uncertain terms the use of  the amendments convention to propose it.  It quickly became evident, from the critics’  rhetoric, that they had confused the Con- vention for Proposing Amendments assem- bly with a so-called plenary (full authority)  Constitutional Convention. BBA advocates attempted to clarify the  difference between the types of conven- tions by pointing out that, as sovereigns,  the states have never needed permission  from the Constitution to call an actual  Constitutional Convention. Indeed, the  only reason to invoke Article V would be  to self-limit the convention’s authority to  “proposing amendments,” as the assem- bly’s name indicates. Continued on back page The new reformers would do  well to press on with the case  for state-initiated amendments  and ignore the tired conspiracy  theories of the past. Continued from front page  The critics would have none of it. In appeals to the public, the critics insid- iously left out any mention of the ratifica- tion process by three-fourths of the states  — the implication being that once the pro- ceedings began, there would be nothing  that could be done to hold it back when,  inevitably, extreme elements moved to dis- solve the Constitution. When challenged  on this, the foes weaved the assertion into  their conspiracy theory that the out-of- control assembly would simply declare its  own sovereignty and dispense with the rat- ification process altogether! As preposterous as this notion was, the  accompanying slogan was more effective:  “We don’t need a new Constitution!”  Gobsmacked, the BBA proponents could  only look on as state legislators made for  the tall grass. One by one, states began re- scinding BBA resolutions. As a postscript to this sad chapter, it  should be noted that by the late  1980 s, the  national debt had just topped  $ 2  trillion.  An effective BBA at that time could have  stopped the bleeding that, by any objective  measure, has become an existential threat. The Professor In  2009 , an academic from the University  of Montana was surveying opportunities  for research. Of particular interest to Pro- fessor Robert G. Natelson were areas of  constitutional scholarship characterized  by a scarcity of research, poor research,  or, optimally, both. Intrigued by the vestigial Convention  for Proposing Amendments mentioned  in Article V, Natelson was struck by the  paucity of modern-day scholarship on the  topic, despite an abundance of original  source  material.   Quietly, he set to work. Before long, Natelson had acquired nearly  all of the journals of founding-era conven- tions. This was added to his existing collec- tion of material from each state’s ratifica- tion convention as each considered whether  or not to approve the proposed  1787  Consti- tution. A picture of early American conven- tion tradition began to emerge.  Casting a wider net, he pulled in over  40  generally neglected Article V court deci- sions, some of which had been argued be- fore the Supreme Court. In a series of pub- lications, Natelson churned out his findings  (available at www.articlevinfocenter.com),  which surprised many — including himself. The research quickly became the gold  standard of scholarship about the pro- cess, known formally as the “State-Ap- plication-and-Convention” method of  amending the Constitution. Natelson held that, far from being a  self-destruct mechanism, the Founders  meant for the process to be used in  parallel to the congressional method as  yet another “check and balance” within  the framework of the newly constituted  federal government. Most importantly, Natelson drew a  strong distinction between the assembly  mentioned in Article V and the oft-men- tioned Constitutional Convention. For  this reason, he is quick to correct anyone  mistakenly referring to the Convention  for Proposing Amendments as a “Con- stitutional Convention.” Natelson’s research trove smashed the con- spiracy theories of the  1980 s and has be- come the intellectual base of the resurgent  Article V movement that has been joined  by Levin and other prominent reformers.  When the history is written, it will record  that this was the moment the Article V  movement achieved critical mass. The new reformers would do well to press  on with the case for state-initiated amend- ments and ignore the tired conspiracy the- ories of the past. Having been marginal- ized to an almost comic degree, the foes of  yesterday have been effectively dispatched. When a battle is won, it is wise to move to  the next battle, for the waiting opponent  is formidable and lives on Capitol Hill.    (540)441-7227 |  C ONVENTION O F S TATES . COM  | Facebook.com/ConventionOfStates| | Twitter.com/COSproject