Eleven “Un-Answerable Questions” About Conventions Now Answered
YET MORE QUESTIONS ARISE!
When ALL the facts are brought to light, it is hard not to conclude that the Convention of States movement is trying to get the GOP to “buy a pig in a poke”!
1. How is the validity of applications from the states to be determined?
A. Initially by Congress, although congressional decisions are subject to judicial review.
BUT with judicial activism on the rampage, we do not know when or how courts will intervene in any Article V convention process.
2. How specific must the state legislatures be in asking for amendment?
A. The legislatures may apply either for an unrestricted convention or one devoted to particular subject matter. There is no rule as to specificity, other than that the legislatures may not dictate specific wording to the convention.
BUT if specific wording cannot be dictated, how can any proceeding be held to a single subject amendment? And if legislatures may not dictate specific wording, who determines when a convention delegate deviated from the sponsoring legislature’s instructions?
3. Must all the applications be in identical language?
A. No. It is enough if they identify the same problem(s) or subject-matter(s). However, prudence suggests that state legislatures coordinate with one another.
BUT several states refuse to coordinate, or create their own caucus to advance their own agenda. There are many, many differing application calls so to develop a consensus; many states would have to rescind their original calls to become compliant with a new caucus.
4. Within what time period must the required number of applications be received?
A. Since adoption of the 27th amendment, it is clear that there is no time period. Because, however, some are still claiming that applications can go “stale,” prudence suggests that a campaign be completed within a decade or so. (The application campaign for direct election of senators took 14 years.
BUT does the U.S. have 10 years to affect change when mushrooming national debt, 94% devaluation of the dollar and exponentially increasing forces on the marketplace threaten the viability of its economy? It is like a towed trailer swaying sideways with increasing swings that eventually turns over and drags the towing vehicle with it since there is no slowing to negate the forces causing it to oscillate!
5. Can Congress refuse to call a convention on demand of two-thirds of the states, and if it does, can it be compelled to act by the courts?
A. No, Congress may not refuse, and the courts can compel it to act.
BUT, as we have seen with Occupy demonstrators, protests at the Chicago 2008 GOP National Convention, even Congressional and executive branch misbehavior (unconstitutional acts, executive orders circumventing Congress and refusal to act where required) it is now much easier than ever to envision Congress stalling, postponing for hearings, manipulating the legislative process by changing its rules, etc.
6. Who are the delegates and how are they to be chosen?
A. Delegates are representatives of their respective state legislatures, and are chosen as state law directs.
BUT the state governor is now appointed as the first delegate and the office that appoints the other delegates (perhaps subject to legislative approval) and delegate selection is determined by whatever method the state legislature selects.
7. Can the convention act by a simple majority vote, or would a two-thirds majority be required, as in Congress, for proposing an amendment?
A. The convention acts by a simple majority of the represented states. The convention may, by a simple majority of the represented states, alter that voting rule.
BUT whatever rules we assume the convention may use, the convention itself is the highest authority, even over delegates and its own rules. Consider how the rules are typically and routinely changed by convention authorities such as the way microphones are turned off, appointed mc’s use their own discretion, parliamentarians refuse to enforce rules and the way the RNC used every power and device to defeat ‘Ron Paul’ delegates in their Florida 2012 National Convention by miscalling voting results and changing rules on-the-fly!
8. How is a convention to be financed, and where does it meet?
A. A convention for proposing amendments is a conclave of state delegates. It therefore is financed by the states. Congress, in the convention call, specifies the initial meeting place. The convention may alter that meeting place.
BUT the Compact for America (Convention of States Movement–COS) creates a perpetual organization to oversee the COS effort and REQUIRES each member state that chooses to join or continue membership to fund this organization without budget ceilings or sunset clauses. It also REQUIRES each member state to defend any and all legal challenges. This is a tremendous liability and one that even legislative counsel advises state legislatures to avoid becoming entangled within.
9. May the convention propose more than one amendment?
A. Yes—but only if they are all within the agenda of the convention, as prescribed by the applying states.
BUT the Convention of States claims that its interstate compact will prevent unwanted amendment proposals beyond a single-subject amendment. Lately, even they have admitted that they cannot hold a convention to a single amendment. No one can guarantee that litigation will not occur over lack of ‘socially responsible’ content in the amendments demanded by leftist organizations or the United Nations as is routinely the case right now.
Eagle Forum states, “If not limited to one Balanced Budget Amendment, could an Article V Convention be limited to amendments (plural) on the one general subject of fiscal matters? The opinion of constitutional authorities is divided on this question. For example, former Senator Sam J. Ervin, Jr., believes that an Article V could be limited to one subject; Gerald Gunther (author of the leading casebook on constitutional law used in law schools) says it could not. Any lawyer can give his opinion on what the Article V procedure can be or should be; but NO lawyer, no matter how distinguished, can tell us what it surely will be, because nobody knows. No law exists to prescribe rules for an Article V and, even if Congress passes one now, we would never know its constitutionality until it is reviewed by the Supreme Court.”
10. Is there a time limit on the proceedings, or can the convention act as a continuing body?
A. There is no fixed time limit—the convention can meet until it decides whether to propose amendments and which ones to propose. But a convention is, by definition, not a continuing body. It has no authority beyond proposing amendments within the subject matter prescribed in the applications, and once that is performed, it must adjourn. Additionally, states may recall and/or replace their delegates at any time.
BUT the COS oversight organization, created to shepherd the process until victory, continues in perpetuity even after constitutional ratification. It decides within itself when it will decommission. It would be easy to see how it would be tempted to start another amendment movement all over again.
11. Can controversies between Congress and the convention over its powers be decided by the courts?
A. Controversies over the scope of the convention’s powers may be decided by the courts. However, the states, not Congress, fix the scope of such powers. The most likely area of controversy between Congress and the convention would be if the convention suggests an amendment that Congress believes is outside the convention’s agenda as fixed in the state applications. If (as is proper) Congress then refused to prescribe a “Mode of Ratification” for the suggested amendment, the courts could resolve the dispute.
BUT, again, the conflict litigation is often driven by forces advocating change, and an all-too-willing judicial branch accommodates dissent with a will to overturn centuries of case law and constitutional theory to accomplish its own, often unconstitutional, agenda. We would hope the courts did constitutionally resolve any disputes; however, we do not want the courts involved if at all possible; not in this political climate (and that judicial involvement is a liability.