Mark Levin, Constitution Article V, and the “Liberty Amendments”

| July 11 2013
David Leeper

Levin-Liberty-AmmnedmentsOn his July 10 radio show, Mark Levin previewed contents of his new book called The Liberty Amendments.  Levin points to Article V of the Constitution, which prescribes the methods by which the Constitution may be amended to reverse the federal power grab and runaway spending.

In the past, most conservatives have pushed off any notion of a Constitutional Convention or “Con-Con” because its agenda might be uncontrollable.  For example the 2nd amendment could even be repealed.  For years, Levin himself consistently said “no way” to a Con-Con.

But after his careful study of Article V and especially the record of the Founding Fathers’ debate on it (George Mason, James Madison et al), he argues we’ve all been missing something critical.

Namely —

Article V was specifically designed to cover the situation we face today — an over-reaching federal government.  The Founders knew that such a government, once entrenched, would never vote for amendments that would reduce its own hold on power.  So they deliberately included a separate amendment process in Article V that keeps Congress, the president, and the Supreme Court out of the loop.

The time for that Article V process has clearly come, says Levin.  It’s been there all along, clearly explained in the historical record, yet we’ve somehow disregarded it.

How would it work?  Consider the following simple, hypothetical amendment to the Constitution:

The debt of the United States shall not be increased except by three-fourths majority vote of both the House and Senate, nor may federal expenditures exceed 20 percent of gross domestic product except by three-fourths consent of the several state legislatures.

The merits of this particular amendment and wording aside, if 38 state legislatures were to ratify this amendment, it would be fully effective immediately as a formal amendment to the Constitution.  No permission from Congress, the president, or the Supreme Court need be sought, none is required, and there is no appeal.*  The state legislatures are the ultimate authority — by design. This may come as a shock those who’ve always presumed Washington rules us all.

Levin’s new book will be available in mid-August, and he includes 11 starter amendments for consideration by grassroots citizenry and, through them, by our state legislators.

If nothing else, this kind of peaceful, Constitutional rebellion of the states should put the fear of God into some of the ruling-class elites who have been perverting our constitutional republic for decades with ruinous debt, as well as other abuses and usurpations.

The first 10 minutes of the video/audio excerpt below cover the core concept.  The remaining 20 minutes include additional explanation and discussion.  The full Levin podcast is available (free) at this link.  Look for the July 10 show.  If you are reading this article long after its publication date, look for the show in the Levin archives at this link.

While this Article V concept can work, it won’t be easy, not least because none of the denizens of the Washington beltway will yield power willingly.  But the Constitution and the Founders’ words are on our side, and we’d better make use of both before it’s too late.

So …

Do you want to participate?  Try your hand at writing some amendments yourself.  Keep them simple.  Mimic the tone and style of the Constitution.  Add them to the Comments section below if you like.  I offer this as another candidate:

No person shall serve more than three terms in the House and two terms in the Senate, except that a Senator or Representative in office when this amendment is ratified may serve out his/her current term.

What do you think?  Let’s get the discussion going …

——————————————————————————–

*Footnote: Constitution scholars (like Levin) need to weigh in, but to comply strictly with the wording of Article V, Congress may demand to play the role of administrator by calling an actual “convention”, which Article V says they shall (meaning must) call if two-thirds of the state legislatures demand it. But Congress would have no voting privileges at that convention.  State legislatures would each get one vote, and when 38 states vote “aye” to ratification, it’s done — the amendment takes effect immediately.  Like the Electoral College, delegates may be pre-sworn to vote in accordance with state legislature direction.
69 comments
BillWalker
BillWalker

For clarity. In the post just made I meant to say, "...thus far I believe he has not actually come up with one original amendment subject..."

BillWalker
BillWalker

Yes, and this brings up a very serious point. For whatever purpose Mark Levin is deliberately ignoring the public record and making it sound like nobody has ever done anything on this issue before he suddenly "discovered" it. While I am not stating this emphatically, judging by his comments thus far I believe he has actually come up with one original amendment subject--everything he has discussed that I've heard on his program the states have already applied for, maybe not in exact language as his, but certainly in intent and meaning. It is not plagiarism in the classic sense but in my mind pretty damn close UNLESS in the actual text of his book which we've not seen yet, he then describes the history of the issue and in that text mentions such and such states have submitted such and such applications on this issue to Congress in the past. Then all he is doing is presenting his version of the matter all the while acknowledging the true authorship of his so-called amendments.

 As to Red states versus Blue states. Take time to actually read the amendment proposals. It is the entire conservative agenda, from social to economic, waiting to become part of the Constitution. The reason it has not occurred, beyond Congress opposing it, is the John Birch Society who have lied for years about a convention and made conservatives thus oppose their own agenda. As hard as it sounds? All it's going to take is for conservatives to tell the JBS to go to hell as they should when the realize how that organization has screwed them, and then reach for the phone to protest to their member of Congress to make him or her follow the Constitution. Believe me, when I say this: they know about this so don't buy into the fantasy that they will try to use, the same one Levin is using: that they never heard about this so maybe they should "begin" to study it, meaning check back in a hundred years and we'll see.

 You can view the applications at www.foavc.org. BTW if Congress did delay this another hundred years you are looking at, based on the current rate of submissions, some 1500 applications from the states. Hardly starting "beginning". Right now there is 746 from 49 states. 

RobertRR
RobertRR

There are a lot more red States than blue. This might not be as hard as it sounds.

BillWalker
BillWalker

Just a couple of comments. First of all to Mr. EC Graf. 39 states have already asked for repeal of the 16th Amendment. You can read the 746 applications from 49 states at www.foavc.org. Most of what Mr. Levin has proposed in his book have already been asked for by the states, such as term limits for instance (30 states). As to how the applications are counted, Miket has it exactly right. The states ask for a convention, not an amendment. The convention is controlled however because all the convention can do is propose. The states still have to ratify by three fourth vote meaning even if two thirds of the states support a proposal, it still takes at least 25 percent more votes in ratification to assure passage. By the way for those going to the FOAVC website and reading the applications be sure to read the response by the state of Delaware to the application by Georgia in 1832. It explains who exactly changes or alters the Constitution perfectly.


Now as to the big question. Why no convention call when the states have applied in proper number to require one. The reason is Congress holds it does not have to obey the Constitution in this regard and has never consented to do so. Therefore it doesn't have. You can read the entire story at www.foavc.org/reference/file49.pdf . To sum it briefly Congress has never consented to counting the applications and the courts have ruled it is a political question for them to determine. Hence, no count, no call. Simple.

E C Graf
E C Graf

Mark, please, we only need one amendment: "The sixteenth article of amendment to the Constitution of the United States is hereby repealed."

MarkinFla
MarkinFla

My proposal for an amendment:

1) Except for tariff's The Federal Government of the United States shall not directly collect taxes from individuals or businesses.  The Several States shall have the power to collect taxes, and shall remit the taxes collected to the Federal Government, and the Several States may remit to themselves the costs of collection.

2) The Federal Government shall not remit payments to individuals under the welfare and spending clause.The Federal Government shall send block grants to the Several States, according to the correctly enumerated population of the Several States.

3) The Senators of the United States shall be elected by Each State according to such manner as the state Legislature may direct.Each state shall have the power to set term limits upon their Senators, and Representatives.

4) The President of The United States shall be a five member Presidential Council, exercising the powers, and suffering the checks and balances delegated to the President by Article II of the United States Constitution.The United States shall be divided into five districts.Each district shall be divided upon state lines, as geographically contiguous as possible, and as nearly equal in population as possible.Each district shall elect one member of the Presidential Council, for no more than one ten year term, in staggered elections, occurring every two years.

miket
miket

I may be missing something, but the way that the Constitution describes the amendment process, it is not necessary for the state legislature to state its reasons for making application for a convention to amend.  All that is required is that enough state legislatures make application.

This has implications for how we might go about promoting an amendment-proposing convention with the public and with our state legislators.  It is not necessary that we be promoting specific amendments; all that is necessary is that we convince the legislators that the federal government is hopelessly corrupt and that a convention to amend the Constitution is the only remedy that can cure it.  This approach can tap into the general public dissatisfaction with Washington without alienating people by pushing specific amendments.

DM Zuniga
DM Zuniga

Congress has been operating as organized crime for 151 years, with the SCOTUS having joined as a co-conspirator just nine years later.  The highest law in the land -- by which We the People, the apex sovereigns in American government, CREATED this federal servant, via our sovereign States as parties -- has been egregiously, serially, blatantly violated y all three branches of the federal servant.

Violations of law call for law enforcement.  Several authors, scholars, and professors of late have put out books, monographs, and web screeds suggesting that the US Constitution has failed.  Some here apparently agree, suggesting that "the founders didn't know what we would face".  Like Hell they didn't; they had centuries of Western history to learn from, and they did indeed learn!

But a law never enforced is no law at all.  Now, it's time to enforce it -- and this can be superintended by less than 1% of the population; law enforcement, unlike electoral politics, doesn't require a majority.  A tiny majority can bring a criminal case up for indictment by a State Grand Jury.

The People and the States, period.  These are the sovereigns that must oversee and administer this law-enforcement, at long last.  Read Hamilton's Federalist #28; that bankster scoundrel didn't realize what a lovely warranty he was offering when he wrote that one.

The lawful, practical, perpetual law enforcement mechanism is called the AmericaAgain! Indictment Engine(tm); see this 2-minute video first, as an introduction:  http://www.youtube.com/watch?v=904Gid8qpKw.  Then see the AmericaAgan! FAQ page and you will grasp it.

www.AmericaAgainNow.com/faq

Remember, when you are dealing with fifth-generation organized crime figures, the only thing you allow them to do is either sign off on a plea bargain or immunity deal, or cool their heels for a decade or so in their State Pen, with their family's assets seized.

THAT is how we restore rule of law.  A ConCon, even if you could make it happen, would take 15 years to achieve -- and many of the things we need repaired NOW are not fitting for constitutional amendments.

www.AmericaAgainNow.com

DavidPeters2
DavidPeters2

The time is now to fix the train wreck that is Washington D.C.  This federal Leviathan must be tamed and it is not going to tame itself.

We need to start CLAIMS MAKING.  Mark talks about how the Left organizes.  WE can organize as well.  We need 2-part episodes of Hannity and Town Hall meetings.  Web sites need to be set up and discussion boards.  Local meetings and national town hall meetings need to be held.  Our elected officials need to get involved. THIS COULD BE THE SOLUTION TO THE COLLAPSE OF OUR NATION.   We need Tea Party grass roots activists and medical marijuana activists and church groups and radical civil rights activists ALL working together on this.  WE CAN ALL WORK TOGETHER FOR THE GOOD OF THE COUNTRY AND THEN DISAGREE ABOUT EVERYTHING ELSE.

We need to be able to agree on just a FEW THINGS:

A few ideas:

1.   The federal government is to big, to intrusive, and to powerful.

2.  The States are supposed to be the primary unit of government in our Constitutional republic.

3.  Conservatives need to take some issues off the table- affirmative action is not really about SAVING the country at this time.  Take it off the table for these amendments.  Recognize the role the federal government has played in civil rights and take it off the table for these amendments.  We want to limit federal power BUT we DON'T want to create civil rights problems, or ill will or go back to the Articles of Confederation- or even back to pre-Civil War.  If that is clear we can get 80% support for most of these economic proposed amendments god willing.


4.  We need MORE democracy, more accountability and more freedom.

Skinard
Skinard

Congress shall lay no tax or duty on private property.  No state shall lay a tax or duty on private property. 

dleeper47
dleeper47 moderator

@BillWalker 

Levin has over 1 million listeners who are now aware of Article V's potential. Up until now, they weren't.  The book may add millions more.  

Should the foavc.com movement try to capitalize on this new awareness and enthusiasm or attack it and deplete it by attacking Levin?  

Will Levin's followers be more valuable as allies and contributors, or as enemies?

What's the best way to attract them, their money, and their new-found enthusiasm?

dleeper47
dleeper47 moderator

@MarkinFla 

You've got some good ideas in there, Mark.  The only one that made me pause is the 5-member Presidential Council.  Could the council act as Commander-in-Chief of the armed forces?  Is that practical?

wjyavelak
wjyavelak

@DM Zuniga

Our govt used force in what were to be free markets.  The result was boom and bust,and they blamed freedom.

Our govt disregards and disobeys and corrupts the meaning of the founders' constitution, then blames the Constitution for the results of disregarding it.


You can't make this stuff up.

dleeper47
dleeper47 moderator

@DavidPeters2 

Excellent points, David.  I too would focus on rolling back Big Government, and I'd do it with a small set of simple but powerful amendments. Trying to do too much too soon could swamp the initiative with complexity.  And I'd pick just one or two amendments for starters to establish the state legislature mindset and machinery.

For now, as a first attempt, I favor a term-limits amendment like the one I suggested in the article (except I think I'd drop the limit on Senate terms to just one term).  I think we could get broad support in multiple state legislatures for this amendment, including some "blue" states. I'll put together some articles laying out the argument for it.

Comments?

David Leeper

WesternFreePress
WesternFreePress moderator

@DavidPeters2 We would be happy to be a hub for posting information about events of this kind. And I don't think new websites need to be made. Facebook and other existing venues work fine for organizing. No need to reinvent the wheel or seek further resources. 


I recommend starting by getting in touch with tea parties in your local area. Helpful organizing materials for anyone's use are found at http://AnyStreet.org

Freshieee
Freshieee

@Skinard 

That is just crazy.  One of the Founding Fathers promoted the taxation of private property in order to allow society to function.  That man was Benjamin Franklin.  In addition, without the ability to tax private property, what would any jurisdiction tax???  How would we find money to defend ourselves??  You right-wing libertarians are insane and outdated.  America became great WITH BIG GOVERNMENT.  We became prosperous during the Industrial Revolution and became a world power after World War II, but the prosperity became widespread (encompassing all socioeconomic classes) after the creation of the welfare state.  You free market purists fail to realize that capitalism in-and-of-itself creates the welfare state; without the welfare state to mitigate the free market's inherent instability, workers and labor groups would revolt and we would have socialism (which, under the right circumstances, wouldn't necessarily be bad.  You need to read up on the actual definition of socialism).  And Skinard, parents ought to teach their children social aspects, like love and the values of life; academic skills are best left in the schools, where we have trained professionals to do that.  You people will be the death of this country; God forbid my generation will be polluted by the likes of your naive and selfish Baby Boom Generation.

Sincerely,

A "Marxist" left-wing Democrat 

WesternFreePress
WesternFreePress moderator

@Skinard Interesting and compelling choice. Would you allow for local jurisdictions to do so?

I hate property taxes. Property taxes don't even take into account ability to pay, like others do. You don't pay, they take your home!

Also, I find the fact that people without kids who own homes pay school taxes and people with kids who rent do not. That is not fair; that does not treat humans equally. (Frankly, I think that public school is not a legitimate social contract function, and its aim could more efficiently (and more ethically) be accomplished through private means, but that is another discussion...)

So how would you replace local revenue acquired currently via property taxes?

BillWalker
BillWalker

@dleeper47 @BillWalker 

If Mr. Levin was serious about a convention he would have taken me up on my asking him to be a guest and he would be informing people about the various points I have presented, most notably the fact the states have already applied in sufficient number to cause a convention call. The entire argument changes with this single fact of public record. The conversation is not about "beginning" but as Levin so far as urged, but "finishing" as your most direct question next very clearly and correctly asks. How do we force Congress to obey the law. Frankly, that should have been the focus of the conversation from the very beginning of this issue, raised some 20 years ago and even further than that by some people.

As I've indicated right now, in the House Judiciary Committee, a decision is being made whether to obey the Constitution or not. Basically two Americans are facing down Congress and there are few if anyone else helping. The odds do not favor Mr. Marks and I and once Congress officially determines it is not going to set a method for counting applications, which is why a convention has not been held, not because the applications don't match, or are not timely or crap like that. 

So answer your question directly have the million or so listeners call Congress and raise hell. That should go a long way toward the goal. As to the value of his group. If they know the facts and so far Levin is not telling them the facts, about the number of applications, about the fact most of his proposed amendments have already been asked for by the states, about Robert Natelson who he seems to suggest is an "expert" on the convention but two years ago was asking me to explain it to him in emails I still have and so forth. I won't even discuss, though I have in great length the proposals of Natelson starting with his brilliant idea to cut the American people completely out of the convention system and arrest any delegate who attempts to do anything at the convention other than what he directed to do by the state legislature (read that as the special interests who control the legislature). I have written articles about this. If you want to read them go to www.foavc.org, look on the front page and near the bottom is reference material written by me. Take your pick of over 50 articles on the subject of a convention.

If these people go as I believe Levin will direct them, then they will set about trying to get his proposed amendments asked for by the states meaning more applications submitted which won't even be counted by Congress. In short they will achieve nothing but buying his book. It's not a matter of being a friend or enemy of FOAVC. It's a matter of getting a convention. To do that means putting pressure on Congress and right now Levin is not urging that. I've seen this before and in the end those who simply go for more applications hang around for awhile and finally run out of steam never realizing that the goal has already been won and all they had to do was instead of wasting time trying to get applications was put pressure on Congress and that in turn would get what they desired--a chance to have their propose amendment actually get proposed.  

If you want to put pressure on Congress then tell everybody to call the House Judiciary Committee and tell them to act to count the applications submitted in the Dan Marks letter. He sent in 42. All they have to do is count 34 of them.

 THEN once Congress counts, it must call. THEN Mr. Levin's book can be discussed along with all the other already submitted applications and we can get about the national discussion he says he wants. What bothers me is Mr. Levin is wasting a golden, historic moment and I'm not trying to make him an enemy--I'm only asking him to tell the people the truth--all of it, not just what sells his book.

 

BillWalker
BillWalker

@WesternFreePress @BillWalker 

Dead serious answer. I've asked the producer of the Mark Levin program to let me be a guest on Mark's program. The reason? His audience is large enough to start the political pressure on Congress necessary to break this wide open. Seriously, get Mr. Levin to have me on his program so people know the truth about this. I raised several points with the producer in my email to him any one of which Mark Levin should be chopping at the bit to broadcast. To date, no response whatsoever from the producer or Mark Levin. Time for being subtle is over--too much at stake now. I need to get on that program or one like it. Mark Levin has said he want to "start" a national discussion. I'm telling you the real facts show this discussion is about to "conclude." The people must and need to know the real facts and right now Levin is not telling them either because he is not aware of them, which I doubt, or even he is afraid to let people know the real truth.

 Second, many things are going on right now in Congress and about Congress which is causing an uproar. Surprisingly few people involved to cause this. Still the more the merrier would be nice. After all, why should only a few of us have all the fun of making Congress sweat? This issue is going to come to head by mid-fall one way or another. We should know for example the actual official position of the senate within a few short weeks. After that comes the Sword of Alexander...risky but constitutional. It will resolve the issue, one way or another.

In sum, get more people involved asking CONGRESS the key question--why do you Mr. Member of Congress support disobeying the Constitution in direct violation of your oath of office and what do you intend to do about it? Until Congress is made to obey getting more applications or discussing what amendments should be passed accomplishes nothing. It is past time talking--now is time for action. I hope this answers your question.

WesternFreePress
WesternFreePress moderator

@dleeper47 A fascinating list of possible amendments, @MarkinFla! A question—how much revenue could tariffs raise on their own for the federal govt.? Economists of all stripes have largely settled on the notion that restrictions on the free flow of trade have a deleterious effect on the economy. Could the national government get enough revenue to fund national defense of tariff revenue alone, without raising them to the point of having a crippling impact on trade?

WesternFreePress
WesternFreePress moderator

@SteveNDallas Interesting notion: Bottom line, as far as I know, this has never been attempted before. Thus, there is no precedent, and no one is entirely sure exactly how this version of the process for amending the Constitution is supposed to work. So we can decide for ourselves. 

That said, would your way be better than asking for specific amendments? So we convince legislators in a state that a convention is necessary---then what happens? What's the next step?

I will say that anything that gets the ball rolling quickly certainly has merit . . . !


WesternFreePress
WesternFreePress moderator

@wjyavelak That's it exactly. And when the whole thing comes crumbling down . . . . when they've finally whipped the horse to death—they're gonna blame the horse. It's what they do.

WesternFreePress
WesternFreePress moderator

@dleeper47 @DavidPeters2 I'm not sure I'd pick the term limits amendment first, but I definitely agree that the states need to come to a consensus on one or two and shoot for those.

DavidPeters2
DavidPeters2

@WesternFreePress @DavidPeters2 Facebook is nice for social networking and while this cite can be a forum for information.....we need monitored and dedicated blog cites.  Membership only blogs.  For example, when medical marijuana went into effect the "Michigan Medical Marijuana Association" set up an "official cite.  They have daily news, links to donate and contribute, blogs for legal questions, and all the apects of medical marijuana.  Monitors keep out Trolls; a search of the cite lets you find out all the information, lawyers and others are members and respond to threads with questions etc..  

For example, we should have an "official" cite (endorsed by Mark and others) where there is a separate blog for EACH Amendment that is proposed, another blog for organizing events, another blog for advocacy/letter writing campaigns, another blog for 'convincing your family and friends' and so on.  People like Rand Paul and Mark Levin can contribute thoughts and link their official web sites to the official "Liberty Amendments" web cite.


Also, if we REALLY want to change the Constitution we need MORE than Tea Party members.  We need MORE than a "big tent."  We need a REALLY big tent and we need to get broad agreement from all- or most- stake holders affected by the proposals.  I think there can be overwhelming support for these changes if both left and right wing groups work together to re balance our republic.

wjyavelak
wjyavelak

@Freshieee Every instance of boom / bust was from forcible government influence in free markets. Every one. 

Moving from the gold standard and adopting Keynes monetary ideas led to the crash and great depression.   We did the exact same thing again with Clinton executive orders to the banks and Fannie/Freddie soaking up bad loans - thus the housing bubble.

We did not fix the housing crisis, we converted it to the FED bubble.  Quantitative easing (making up money)  and zero fed rates will have to remain to keep the fed bubble inflated.  But if they remain, eventually we will not be able to export our debt and it will come crashing down.  It will be ugly.   Look at what the markets did each of the two times there was no official fed policy in the past 5 yrs.    High rates and hyperinflation is coming and once again it is due to govt force through idiot bureaucrats that have never created any wealth.  And once again, freedom and capitalism will be blamed.  

It was from FDR's attack and win on the SCOTUS that we can mark the death throes of the US.   It was there that we chose the interests of  the 'group' as superseding each individual's personal right to life and property.    It was not prosperity that became widespread with the prevailing collectivism, but death, injustice, and evil. 

Thankfully, Ben's ideas of govt confiscation of any individual's "excess wealth" (as defined by whom?) were in the stark minority.   Too bad Jefferson's notions of state education were not specifically spurned. 

The good is each individual's right to his life as this is a good common to all individual men and women.   A man must use the time he has to think and act in order to support his life.   This means that the product of a man's time thought and effort MUST be his own if he is to have a true RIGHT to his own life.   This means that it is EVIL - anti-life - to claim or enforce a state of affairs in which a man's property is taken from him by force.  Any government that proposes to do so is illegitimate, anti-life, wrong, evil, and no better than a master of slaves by use of a gun.  

A just government that protects (rather than breaches) each citizens right to life is possible and can be funded without forcibly taking the life efforts of the citizens.  The reason there is so little apparent effort in proclaiming those methods, is that the established govt depends on force, on theft, and on the populace not realizing these things, their enslavement, and the options available to them.

Skinard
Skinard

@WesternFreePress

I hate property taxes, mostly because property taxes make your property the property of the state if you don't pay them. Property taxes make your property not yours, even if you have paid in full. Americans should be secure in what they own if bad times occur, or even if we simply choose to live unfettered and free on our own property. We should not have to pay the state in order to keep what is ours. But, we are not secure due to the overbearing burden of every level of government. So no, I would not allow local jurisdictions to levy a tax on property either.

I agree with you about school taxes. Although I have several (12) children, I believe it is my responsibility to raise and educate them, not the state and not my neighbors. Public school has become indoctrination daycare for working parents anyway. I should not have to pay for it.

Cont'd... 

BillWalker
BillWalker

@dleeper47 @WesternFreePress @BillWalker 

Alright let's deal with this suggestion point by point and this time I will use references. First, that when the states ratify an amendment it's over and the rest is incidental.

Wrong. The Supreme Court expressly ruled in United States v Sprague 282 U.S. 716 (1931) that there are no rules of construction, interpolation or addition permitted in Article V. Hence, what you read is what it is. Period. The court has never had in its entire history a dissenting vote by any justice when dealing with Article V. What you suggest was specifically addressed by the court in Sprague where the plaintiff argued that the proposed repeal of the 18th Amendment should be decided by a vote of the people rather by one of the two modes prescribed by the Constitution. The court emphatically rejected this saying that Article V was carefully laid out by the Founders, clearly understood and no subject to change (quoting here Hawke v Smith, 253 US 221 (1920) by either state or federal courts or legislatures. 

Therefore the entire process is not incidental and may not be changed by the states as you suggest. By the way for your reference it was the United States which asserted Article V cannot be changed.

Next what you suggest as to the states holding "meetings." Article I, Section 10, Clause 1 of the Constitution specifically states, "No state shall enter into any treaty, alliance or confederation..." In Section 10, Clause 3, the Constitution specifically forbids states from "entering into any agreement or compact with another state (without the consent of Congress). Moreover in Hawke and several cases the court make it absolutely clear the choice of ratification was up to Congress to make, not the states, Put all together, states cannot do as you suggest as it would be an agreement which must be approved by Congress, violates Article V as Congress would not have chosen the mode of ratification, violates Article V in that neither the two bodies charged with proposal of an amendment would have proposed it and therefore such "ratification" would be unconstitutional.

Further in Farrand Vol. II pages 557 to 559 you'll see that the convention deliberately voted down a early version of Article V that did allow states to propose amendments BUT THIS WAS ABANDONED IN THE CONVENTION GIVING THE SATES INSTEAD THE RIGHT TO APPLY FOR A CONVENTION AND OF COURSE RATIFICATION. See also Vol. II, pages 630-631. 

Next until 2000 no one had ever asked Congress to obey the Constitution regarding Article V and only in the last few months has there been request in writing for a formal count of applications. So it is a little premature to say Congress has always refused given the matter is presently before the House Judiciary Committee and the committee has made no comment whatsoever yet. It may be presented with the evidence for the first time in United States history of the actual text of the applications of 34 states, Congress may obey the Constitution. Perhaps not but I suggest we not jump to conclusions...just yet. See www.foavc.org/reference/file49.pdf, same reference for file 50 and file 51.

Next the case has already been brought to the Supreme Court in 2004 with the court ruling in 2006. It denied cert but not before the government conceded for the first time in U.S. history what the terms and conditions of a convention call. The attorney of record for the United States Congress who were sued both as individuals and in their professional capacities, agreed that as a matter of fact and law the following was true: (See FOAVC, FAQ section, Question 9.1) A convention call was based on a simple numeric count of applying states with no terms or conditions (thus affirming the earlier Sprague ruling). Such terms and conditions would include of course extemporaneousness, same amendment subject (rejected by the Founders in the 1787 convention) and so forth. The counsel agreed the call was peremptory upon Congress meaning no excuse could offered whatsoever by Congress not to call (see Federalist 85, Hamilton generally) That sufficient number of applications had been submitted by the states to cause a convention call (See FOAVC list of 746 applications from 49 states. At the time of the lawsuit the known number was 567 applications from 49 states. That it was a federal crime for Congress to refuse to obey the Constitution and not call when the states had applied as it constituted a mental reservation by the members of Congress (See generally oath of office laws, specifically 5 U.S.C. 7311 advocating overthrow of constitutional form of government. See also Executive Order 10450 (a)(4) a criminal act to attempt to alter the constitutional form of government by unconstitutional means. (Refusing to call when mandated alters the constitutional form of government which mandates a call when two thirds...you know the rest).

My favorite amendment for your information is an IRR asked for by Wisconsin in 1929. I believe that much of the issues of today will be solved when that is added the Constitution. IRR for those who may not know the term stands for initiative, referendum, recall. Yes, I've been involved in this for over 20 years and by far (unless someone is lurking out there I've never heard of) written more on the subject than probably anyone else. BTW FOAVC does not advocate amendments. We are non-partisan so there is no FOAVC term limits proposal. Remember you asked for MY favorite amendment. FOAVC has none.

Finally, the court ruled in Hawke that when states operate in the amendment process they do so under the authority of the federal constitution, not state constitutions. Hence, the states lack the authority to even start what you suggest.

WesternFreePress
WesternFreePress moderator

@dleeper47 @BillWalker I think it's time for another article on this. WFP can and should take a role in this. Do you have supporting information for your interpretation of the Founders' intent for Method 2?

dleeper47
dleeper47 moderator

@WesternFreePress @BillWalker @dleeper47 

The essence of Article V, Method 2, is that when the 38th state ratifies an amendment identical to that of 37 other states, it's over. That amendment is immediately in full force in the Constitution. 

The rest is incidental. In particular, Congress has no more than a mere ministerial role, no doubt needed in the 18th century to get business transacted, but not in the 21st century.  Alexander Hamilton, Federalist 85, specifically addressed the possibility that Congress would try to use this mere ministerial role as a "pocket veto", and he emphatically rejected it.

There have been repeated "applications" from the states to Congress, and Congress has repeatedly done what Hamilton said they cannot and shall not do.

Therefore:

The states can conduct their own "meetings," with themselves, two at a time or 50 at a time.  They can do it in person or by internet. They need never gather physically at all if they don't want to. They can conduct their own virtual "convention", distributed across time and space. All that is needed is those 38 ratifications.

So stop waiting for Congress to voluntarily obey the Constitution per the Founders' intent.  Choose Levin's or Bill Walker's or FOAVC's favorite term-limits amendment (for example) and start ratifying.  Just do it, damn it.

In particular, stop whining, hand-wringing, crying, and appealing for money from citizens to take a case against Congress to the Supreme Court some day. SCOTUS has no authority in Article 5, method 2. And they're on the other side.

Some states like California, New York, and Illinois won't go along with some amendments (like balanced budget) because they're counting on the federal trough to keep their states afloat. But we don't have to have them ... Wyoming's ratification will count just as much as one from California.

We've got 50 Tea Party movements in 50 states. The movement's next great mission can be 50 missions at the state level. I recommend we start with Levin's term-limits amendment and get to work. You sound like you've been active in this arena for along time.  What's your favorite amendment?

You talk about a million phone calls to Congress? That's a good idea. That may help. So would 20,000 calls to each of 50 state houses to get a term-limits or other amendment ratified. 

Once we get close to 38 ratifications, Congress may suddenly come around and fulfill their little ministerial role just to keep things tidy. Or they may not. It doesn't matter. When we hit 38, we will "deem" the Constitution amended. Will that cause a "Constitutional crisis"?  You bet.  Aren't we in one now?

Other than that, I'm neutral on this subject.


BillWalker
BillWalker

@dleeper47 I forgot to add one last important fact I should have mentioned earlier. The only group that is paying attention to FOAVC is the government. It will base its decision on the record of applications gathered by FOAVC. Court rulings specifically discussing the convention will be its only source of court input and were brought by a member of FOAVC. The main source cited by the CRS in discussing the article V convention is FOAVC. A criminal complaint lodged against members of Congress referred to the FBI for investigation, stems from FOAVC material. The arguments debunking the myths about the convention were, for the most part, advanced by members of FOAVC. While others have talked about getting a convention we've been at work getting one.

So while Mr. Levin may chose to not inform his readers/listeners about FOAVC, the government know about us and is reacting. The simple fact is this--if Mr. Levin were tomorrow mention FOAVC and the facts I have mentioned in these posts together with online references and rev his people up as I have heard him do, we could have a convention call inside of a week. Instead he cites Robert Natelson who wants to cut the people out of the process and arrest them if they attempt to represent those people against the special interests. 

So Mr. Levin is going to have to make a decision soon because no way will all those million people not start checking the Internet and finding FOAVC. He's either going to start telling his people the full truth, watch events unfold that FOAVC has caused or face the reality of answering a lot of questions why he didn't tell all when he should have. 

Mr. Levin note. My offer still stands. You want the full truth as you often say then bring me on and I'll tell it. I fully support your efforts to bring this issue to light. I just want to see ALL is brought to light.

WesternFreePress
WesternFreePress moderator

@BillWalker @dleeper47 Leeper has a suggestion for how the states might go about responding to this failure of Congress to obey the law. David, please take it away . . .

BillWalker
BillWalker

@SteveNDallas @BillWalker @WesternFreePress A totally reasonable possibility. The producer did say he would contact me if he was interested. I assume such gag rule would apply equally to him. So, as they say, time will tell. Appreciate your perspective.

SteveNDallas
SteveNDallas

@BillWalker @WesternFreePress I'm an attorney, and I've written many agreements involving Authors (including NYT best-sellers), and well as a book on Copyright Law.  I would be surprised if his contract(s) DID NOT include a "gag-clause"; in fact, if you know what to listen for he's said as much on the air.  These clauses have all kinds of "you must publicize through these preferred channels" first and by D-Date/any publicizing prior to D2-Date must be pre-approved in writing by the publisher/blah, blah blah."  There are usually severe consequences for violating such clauses.  I would be confident that it's not personal, and when the gag expires, you'll be on a short-list.

SteveNDallas
SteveNDallas

@WesternFreePress Let me add another (I've been doing more pondering): 

21.  The Constitution is the Supreme Law of the Land.  No treaty shall supercede or surplant or modify, in whole or in part, anything contained herein.  Upon a finding by The Supreme Court that a Treaty violates the Constitution, which shall be the Court of First Review of any International Treaty: 1) the Treaty shall be VOID and without effect, and 2) the Chief Executive shall be tried for impeachment and removal at the date of highest priority on the Congressional Calendar as the Next Item of Business.

22.  No funds of the US Treasury may be used to fund international organizations or international governments, provided, however, that such funds may be used to pay for legitimate expenses solely associated with US Administrative participation in an international organization. 

23.  No National immunity granted to a Government may extend to the states or muniicipal governments. (makes bribery at the UN a crime; makes diplomats pay parking tickets -- if we have to live by our laws, so do they; speaking of which . . .

24.  No branch or official of the Federal Government, whether elected or appointed, may exempt themselves or itself from any law.

dleeper47
dleeper47 moderator

@SteveNDallas @WesternFreePress

Good comments!  A Google search on "Article 5 Amendment Process" or something similar will turn up a lot about history. There have (evidently) been many attempts to do state-driven Constitutional amendments, none successful thus far.  

Article-5.org has a lot of material, and so does http://goldwaterinstitute.org/articlev.

WesternFreePress
WesternFreePress moderator

@SteveNDallas I am not seeing 20 amendments below.....

 Also, can you tell us all more about the attempts that were made?

SteveNDallas
SteveNDallas

@WesternFreePress @SteveNDallas I think it has been tried on three or four occasions, although no Article 5 Amendments have been successfully passed. As for specific amendments, please see my other comment (below) where I list 20 proposed amendments.  Now, as for how to get there, what is needed is a leader -- probably a state governor -- to provide the vision and shepherd the process.  I would also let the Amendments have "open dates" for passing, so as to not have to keep re-visiting them.

dleeper47
dleeper47 moderator

@WesternFreePress @dleeper47 @DavidPeters2 

My compliments to Mrs. Cook -- obviously a wise and sensible woman!

One caveat -- a term limits amendment is a direct assault on the old silverback gorillas in Congress.  It wipes them out in a matter of just a few years.  They will surely attempt to stop it, probably by refusing to hold the "convention" -- in effect a pocket veto.

Mark Levin may have some ideas on how to clear that obstacle, but so would someone like Newt Gingrich.  I hope he joins up with the Article 5 movement. It seems like something he'd favor.

Redistribution reform would also make a great amendment, but its less concrete, harder to understand, and, I think, much harder to get to 38 states.  Term limits are simple, concrete, and can appeal to the 80-90% of citizens who disapprove of that body -- on both the Left and Right.

dleeper47
dleeper47 moderator

@WesternFreePress @dleeper47 @DavidPeters2 

I'm open. But I like term limits because it would clear out the lifetime legislative-class hacks that piled up a 17 trillion dollar debt on their watch.  They have got to go ... McCain, Dingel, Rangel, Schumer, Pelosi, Reid, etc., etc.  Picking names is like being in a candy store ... I don't know what to go for next ... 

Until these good-ol' boys are gone, I can't imagine getting any behavior changes in Congress.

WesternFreePress
WesternFreePress moderator

@wjyavelak @FreshieeeRight there with you on most of this. And I would certainly rather live under an Austrian, metals-based monetary system than what we have today. But a question: In a full-reserve, Austrain, metals-based monetary system, how would we deal with the risk of chronic, low-grade deflation?

WesternFreePress
WesternFreePress moderator

@Skinard @WesternFreePress At the federal and state level, some form of either flat income tax or consumption tax. The local level is tougher, because of tax collection issues. Does a local district tack on consumption tax just for the businesses in its jurisdiction? Do they have to send some $ to the feds, some to the state, and some to the local? That seems doable, though cumbersome and fraught with difficulty. I think that is one reason that localities do property taxes----they are easy. It's easy to tell what property is in the locality, and it's easy to send out tax bills once a year. I guess I would favor privatizing as much as possible, so that the need for revenue was small (road maintenance spring to mind as a legit function), and then go for a small income tax or even capitation, if the amount were truly small....

Skinard
Skinard

@WesternFreePress I suppose I don't have a preferred method of the government taking anything that I own, even my money.  Obviously some form of revenue generation is necessary.  I would not be opposed to many forms of taxation as long as it were reasonable, fair, and did not give the government over bearing power.  The current form of the property tax fails on all counts.  I suppose I might not even oppose some form of a "property tax" if it met this criteria, but I am sure that we could think of even better ways if we gave it some serious thought.

What are your preferred methods?

WesternFreePress
WesternFreePress moderator

@Skinard I agree on all that---a government, properly constituted, does not need nearly so much to run. But still, I ask, in your view, how do local government collect whatever revenue they still do need? What would be your preferred method of revenue/taxation for local areas?

WesternFreePress
WesternFreePress moderator

@Skinard Agreed on all counts (except I don't have 12 kids myself :-)


Looking forward to your continuation . . .

Skinard
Skinard

Replacing the revenue would follow the preceding point. Revenue would not have to be replaced if all people paid their own way. Local governments could then be drastically cut to what is truly needed to run the towns and revenues could be collected in many other ways which do not infringe on the rights of life, liberty or property.

And yes. It can be done. In some areas of the country it would be very difficult, but in many areas it would be very easy. If a constitutional amendment were passed, it would force all levels of government to live within their means, and would also give the people a certain level of power over their officials - which is how it should be.