Essence and Accidents of Article V – a ‘Plan B’ to Rein in Washington
Convention 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.
Background: 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 propose 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.
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.
To 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 —
If 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!
* 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.