Essence and Accidents of Article V – a ‘Plan B’ to Rein in Washington

| December 31 2013
David Leeper

CFA COSConvention of States (COS) and Compact for America (CFA) are two serious, complementary initiatives intended to reform our runaway federal government via state-legislature-driven amendments to the US Constitution.

COS focuses on careful preparations for a convention of delegates to propose amendments, and CFA focuses on interstate compacts directed toward specific amendments — initially a balanced-budget amendment. Both initiatives are certain to encounter fierce resistance from those with a stake in Big Government and the status quo. That includes many Republicans as well as Democrats.

Furthermore, two groups on the political right, the Eagle Forum and John Birch Society, oppose the “Fivers” in COS and CFA because they fear a “runaway convention” that could (for example) repeal the 2nd Amendment. Those fears appear to be truly groundless (see links here and here), but the opposition from those two groups is very real.

AristotleBackground:  I’m an engineer by training, but I did take a philosophy course in college where we discussed the insight of the philosopher Aristotle (384-322 BCE) that a thing, anything, has both essential and accidental properties. For example, a chair can be made of wood or metal but this is accidental relative to its being a chair. It is still a chair regardless of the material from which it is made. This concept of essential and accidental properties applies to a written law just as it does to a physical object like a chair.

So what? So this …

Article V specifies two methods for amending the US Constitution. By design, the second method allows state legislatures to amend the Constitution without the permission or approval of Congress, the President, or the Supreme Court. It does assign a ministerial role to Congress regarding the calling of a convention to Article-5-300x235propose amendments upon application by 34 states, but Congress has no vote or veto anywhere in the process unless state legislatures implicitly (and thereby mistakenly) grant them that veto power. In other words, Congress’ ministerial role is accidental, not essential, to Article V. Even the need for a physical face-to-face convention is accidental.

To be sure, in the 18th century, before the invention of even the telegraph, a physical gathering at a convention may well have been a practical necessity. But in the 21st century, discussion, debate, and convergence on any proposed amendment could easily be distributed over space and time in a virtual convention via the Internet, video conferences, the telephone, email, or other modern means. A traditional face-to-face convention is today (and in fact always has been) an accidental part of Article V Process 2.

So what is the essence of Article V Process 2? I argue that it is simply and specifically this:

When a 38th state ratifies an amendment worded identically to one that has already been ratified by 37 other states, the Constitution is so amended. Instantly. Period.

That is the esssence, the core, and the spirit of Article V Process 2. By design, the state legislatures are in charge — not Congress, not the President, and not the Supreme Court. And it takes only 38 of the 50 legislatures to amend the supreme law of the land, obligating the federal government, including and especially the Supreme Court, to obey, preserve, protect, and defend that amendment.

So –

In the event that Big-Government-loving politicians manage to subvert the intent of the Framers by focusing on Article V accidentals, or if fearful reactionaries on the political right manage to paralyze COS and CFA, is there any “Plan B” that might be employed?

I argue here that indeed there is, based on the essence, not the accidents, of Article V Process 2.

Texas Capitol AustinTo borrow a phrase from Nike Corporation, Plan B is “Just Do It“. Find a first bold state legislature like the one in Texas, Indiana, or South Carolina, and directly ratify an amendment such as the term-limits amendment in Mark Levin’s The Liberty Amendments.  As one state after another follows suit, there may be some changes, but via a virtual convention, distributed across time and space, the legislatures can converge on an amendment that 38 states willingly and explicitly ratify.

And when that 38th state ratifies that amendment, it’s game over … the Constitution is amended. Period. That is the essence of Article V Process 2, and there is no appeal by, or through, any branch of the federal government, including and especially the Supreme Court.* Again, by design of the Framers, Article V Process 2 is the ultimate override. The state legislatures are in charge.

Furthermore, by sidestepping the accidentals of a “convention” that Congress may obstinately refuse to call (even though it is Constitutionally obligated to do so), we can also avoid the fears of a “runaway” convention — the Plan B approach will occur in public view over time, not suddenly, in secret, in the back room of a convention hall as some still seem to fear.

Now, none of this “Plan B” discussion is meant to detract from the careful and deliberate paths chosen by COS and CFA. Both plans presume Congress will act in good faith, and both deserve full grassroots support. And it is the grassroots — We the People — who will need to encourage (perhaps goad) our state legislatures to use the power that the Framers gave them to rein in an overreaching, overtaxing, and over-regulating federal government. But if the COS, CFA, or other Article V Process 2 plans flag or fail, there is always the more direct approach via Plan B, that is, 38 direct state-legislature ratifications.

Additional comments –

constitutionIf Plan B were implemented, depriving Congress of its accidental ministerial role, might Congress, citing that technicality, refuse to honor the 38 state ratifications? It’s possible. And might that generate a Constitutional crisis? It certainly could. And wouldn’t that be a subtle shift!  With Washington’s 17-trillion-dollar debt and monstrous freedom-robbing regulatory agencies, I’d say we’ve been in a growing Constitutional crisis continually now for over 100 years.

By its abuses and usurpations, the federal government has repeatedly violated the terms of the license granted to it by the states in the US Constitution. That government’s policies have brought our country to the brink of insolvency and collapse. Through COS, CFA, “Plan B”, or some other approach, it’s time to seek redress and rebalance by direct modification of that license through Article V Process 2.

Finally, frankly, it’s time for an attitude adjustment at the state and federal level: We the People, through our state legislatures, are the licensor. The federal government is but the licensee. It is not the other way around, no matter what the elites in Washington may think!

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* This will be disputed by some — especially litigators who anticipate arguing Article V Process 2 issues in federal courts, including the Supreme Court.  I argue that no federal court, especially the Supreme Court, has any standing to rule on Article V Process 2 issues. No role for federal courts is granted by Article V Process 2, and even if it were, every federal judge would have to recuse himself or herself because he/she would have a direct personal stake in a Constitutional ruling that could one day limit their lifetime term on the bench or reduce their currently non-reducible compensation. That built-in conflict of interest would disqualify all federal judges — especially Supreme Court justices. That which 38 states ratify, the federal government must accept — all three branches. We the People are not subservient subjects of the federal government.
10 comments
lightness2see
lightness2see

I am very enthusiastic about this, even after considering the very real concerns of Phyllis Schlafly on the Eagle Forum website.  We actually have no other alternative-as our government is slowly but surely lumbering toward collapse.  Obama has just created 2 NEW agencies to further cement federal tyranny and no one has objected!

Would Plan B allow state legislatures individually to pass an amendment, for example, deratifying the 16 and 17th amendments?  For a discussion of how the 16th amendment was fraudulently declared law, see: http://www.givemeliberty.org/features/taxes/notratified.htm.  Deratifying these two amendments is perhaps the most important issue facing those of us who wish to turn back control of our government to the people, even more so than a balanced budget amendment. 

Jim Flaugher
Jim Flaugher

Time is growing ever short, the federal leviathan is growing at an ever increasing rate.  The Compact for America initiative using interstate compacts offers the most safeguards and a much more efficient legislative enactment process.  The timeline from proposal to ratification for CFA can be as little as 12 months.  A standard Article V can take several years, as much as a decade.  "Plan B" although a viable alternative, offers no projected timeline and in my opinion, would likely take too long.  It's past time the states reasserted their Constitutional duties and responsibilities.  Let's keep all these options on the table, clearly something must be done. 

dleeper47
dleeper47 moderator

@Jim Flaugher 

Right on, Jim -- thanks for the comment.

The biggest challenge is that of getting the state legislators to realize the power they have and then exercising it. Most are far too timid. Most are used to being bribed by the feds with money extracted from the legislator's constituents. Even more effective will be threats to withhold federal funding on various programs.

But some brave state legislators are stepping forward, and others will follow.

Furthermore while Congressional reps & senators aren't really required, some will help "pull" the concept forward and encourage state reps to proceed. And some in Congress know that they've become addicted to spending and would actually welcome the intervention from the states, much as a drug or alcohol addict would welcome it. 

WesternFreePress
WesternFreePress moderator

@Jim Flaugher @David Leeper Yes, keeping all our options on the table is essential. Maybe all we fivers disagree on what we think is the best method, but we need to unite under one banner---namely, that something must be done, and that we mean to do it, one way or the other. The forces of oppression and statism need to know that we're united and determined and we're not going anywhere.

dleeper47
dleeper47 moderator

@WesternFreePress @David Leeper 

My nominee for "best method" is indeed "all of the above". 

All approaches require 38 ratifications -- the various plans differ in what comes before that.

Plan B goes directly to ratification, and it could work well for a simple but powerful counter-punch to Washington like Levin's term-limits amendment. There's not much to debate in that amendment, and if 3 or 4 state legislatures ratified it, we could get a snowballing effect all the way to 38. 

Congress would squeal like a stuck-pig that they hadn't had their rightful opp'y to call a convention. They'd try to turn that accidental into a virtual veto power. I'd give them 30 days to call the convention if they really want to, and if they fail to come through (as usual), then "deem" the Constitution amended.

Or something like that.

WesternFreePress
WesternFreePress moderator

@dleeper47@WesternFreePress@David LeeperDoolittle raid was fine----it's just that as we become more tyrannical as a nation, the more my heart leans back to the Founding era.


And isn't it too bad that there are a whole lot of people who would think that my use of the phrase "tyrannical" is overwrought . . . not understanding that there are all sorts of forms and levels of tyranny.

dleeper47
dleeper47 moderator

@WesternFreePress @dleeper47 @David Leeper 

We have 50 states, and when frustration with Washington is high enough, one or two bold states may step up to a direct ratification to "make a statement." 

Others may follow. But that first move can rally conservatives as Jimmy Doolittle's raid on Tokyo did for the American people -- not a lot of damage per se -- not a war-ender -- but a big boost to morale, and a wake-up call to conservatives that says "hey -- we can win this thing!".