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You Are Here: Articles Saturday, May 30, 2015

by Tim Baldwin

Polymontana reposted Prof. Rob Natelson's article on why Amendments will work (note: I reposted this article too). Someone self-named as "fredh" posted in the comment section an article by John Birch Society coordinator, Rob Brown, on why we can't use or trust Article V; namely, because Congress will control the convention and the States will be left with worse than what they wanted or nothing at all.

Rob Brown's article follows, and after this, I reposted my comment to Brown's article below.

Congressional report validates JBS convention concerns https://www.fas.org/sgp/crs/misc/R42589.pdf

Written by Robert Brown
March 18th, 2014

A 2012 report from Congressional Research Service, whose analysis is described as “authoritative”, validates many concerns voiced by the John Birch Society regarding an Article V convention.

Supporters of a convention have made claims that the Article V convention process is a way to “bypass Congress” in the amendment process, a process often claimed to be “totally controlled by the states”. We are told the states would determine the qualifications for delegates, the rules and subject matter for a convention, and could arrest and replace delegates if they overstepped these rules.

Contrary to these claims, the report points to the surge of support for a Balanced Budget Amendment Convention, in the late 70′s and early 80′s, as a time when Congress introduced 41 bills, which “generally included quite specific standards for state petitions, delegate apportionment formulas and delegate qualifications, convention procedures and funding, specific limits for the life of a convention, ratification procedures, and judicial review.” (p.26, emphasis added)

In these bills, Congress addressed the question of how many delegates and how many votes each state would have, but didn’t seem to subscribe to the claim that, “Of course, it would be one state, one vote.” Contrary to this, “Apportionment of convention delegates among the states was generally set at the formula provided for the electoral college.” (p.26, emphasis added) Congress seemed to feel the convention should represent the populations of the states, not just the states themselves. For example, this would give California 55 delegates and votes, while a smaller state, such as Montana, would have only 3 votes among a total of 535 (although giving Washington D.C. 3 votes was also on the table, which would raise the total to 538, see p.30). This should cause great concern for anyone whose views are not supported by the largest of states.

Undermining the claim that states can control their delegates, and arrest them for exceeding the bounds set by the states, the report observed, “Most bills provided that … delegates received immunity from arrest in most instances during the convention.” (p. 27, emphasis added)

The report explores extensively the arguments of whether a convention would be limited or unlimited in scope, and finally concludes, “the question “what sort of convention?” is not likely to be resolved unless or until the 34-state threshold has been crossed, and a convention assembles.” (p.17) In other words, “We have to pass the bill so that you can find out what is in it”! But of course, by then it will be too late to stop it.

Remember, this report was written for Congress in 2012, to instruct them about their powers regarding an Article V convention. The overarching message is quite clear. “Article V delegates important and exclusive authority over the amendment process to Congress.” This exclusive authority applies to both methods of proposing amendments, those proposed by Congress as well as those proposed by an Article V Convention. (p.4, emphasis added) The history cited represents not only what Congress could do in the case that a convention is called, it represents what Congress has done in preparation for a convention. History is the most accurate predictor of the future, and Congress is being reminded of that history.

Please see the entire report at the following link:

https://www.fas.org/sgp/crs/misc/R42589.pdf

Who is the Congressional Research Service?

From the website of Congressional Research Service (http://www.loc.gov/crsinfo/)

“The Congressional Research Service (CRS) works exclusively for the United States Congress, providing policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation. As a legislative branch agency within the Library of Congress, CRS has been a valued and respected resource on Capitol Hill for nearly a century.

CRS is well-known for analysis that is authoritative, confidential, objective and nonpartisan. Its highest priority is to ensure that Congress has 24/7 access to the nation’s best thinking.” (emphasis added)

Robert Brown
Field Coordinator
The John Birch Society

I added my own comment to Brown's article, stating the following:

I will write a response to Brown’s article, because the report he cites actually supports a limited Article V convention. In fact, the report more than implies that the “runaway” theorists are plainly wrong. But if we are going to use what the federal government has actually done in the past relative to this issue, note that the U.S. Senate in the 1970s and 1980s, as well as the Attorney Generals under Carter and Reagan, issued resolutions and memos stating that Article V is limited, not unlimited.

Additionally, this report is written in memo format, what law students are used to writing in 1st year classes; namely, state the “for” and “against” positions and get to “maybe”. This publication is, in reality, a regurgitation of old information and adds nothing new. It uses old reports and does not even touch the work of people like Natelson that shows the historical proofs of what conventions are.

Also, Brown tries to make Article V appear as if no one knows what it is, something like Obamacare–let’s pass it and then read it. How insulting to the Founders and ratifiers of the Constitution! As Madison said about Article V in Federalist Paper 43, "The mode [of amending the Constitution] preferred by the convention seems to be stamped with every mark of propriety." The Founders knew well what Article V was intended to do and how it was intended to proceed. I thought, of all groups, JBS proclaims that the Founders’ intellect and legal capabilities were of the highest order, such that our Constitution is perfect or nearly perfect. Yet, they couch Article V in maniacal terms. This can’t be.

If the Founders knew what they were drafting when they drafted it and this Constitution was to, as Madison said, “bind the States forever,” then how did they create a procedure that blew the whole thing up in a single convention!? No, this makes no sense and contradicts the way JBS portrays the perfectness of the Constitution and the Founders’ intent of protecting liberty and rights.

To illustrate this further, does JBS know what the Commerce Power was “intended” to do upon its draft and ratification? How so? After all, all it states is, Congress shall have the power to regulate the commerce among the several States. What procedures, limitations and definitions are contained in that clause, such that JBS can dogmatically state that the Founders intended to limit the power of Congress? Or do they rely on the fact that the States ratified the Tenth AMENDMENT to limit that power? Surely, JBS wants people to believe the Commerce Power limits the federal government. In other words, they preach the end they WANT to see.

Yet JBS claims the opposite effect with Article V and states that the Founders created a provision that essentially dumps the whole Constitution into the pits of hell. They preach an end that they DO NOT WANT to see. If they really believe this, how can they claim the rest of the Constitution is what JBS says it is? This is logically contradicting relative to the Founders' intent of the Constitution.

If, however, as JBS states, the whole Constitution was drafted and ratified in a way that protects all those rights and sovereignty that JBS claims is protected by the Constitution, then they must include Article V in that description. As such, they SHOULD be preaching the end they WANT Article V to have: namely, a limited convention to particular topics.

JBS fights against their own work and against their own view of the Constitution by preaching doomsday Article V prophecies. Is self-fulfilled prophecies of doom any better than trying to use Article V in a way that the States want to limit federal power? At least if the federal government attempts to circumvent the States’ clear political will of limiting federal power the States can respond appropriately with the force of sovereignty and get to the head of federal corruption. This is what we call bravery, sovereignty and political will.

Does JBS prefer the States ignore what the Founders plainly gave us to fix political problems of the federal government? If they do, then they cannot claim the Founders created a Constitution as they describe and should quit indoctrinating people and tell them the truth: the Founders did not know what they were doing!

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