On A Call For a Constitutional Convention, part 2

Part one of this saga can be found here. Today the Lieutenant Governor of Georgia sent out a reply which follows. My response may be found below.

On Apr 12, 2010, at 3:50 PM, Lt Governor Mailbox wrote:

Dear Friend:

Thank you for taking time to share your views about my proposal for a Constitutional Convention or ConCon. This is certainly not a step to be taken lightly; however, the recent actions of Congress leave the people of America little choice.

The Founding Fathers, in their wisdom, gave the people -- through their state legislatures -- the ultimate constitutional authority in the event Congress ever overstepped its intended authority, which is, of course, exactly what has happened with the new federal law requiring every person to participate in government-run health care.

I, too, opposed a ConCon a few years ago. Back then, we were worried that a ConCon might open the floodgates. Well, Congress has already opened the floodgates... and they're taking away our freedoms and liberties every day, unchecked... constitutional or not. We need a ConCon to CLOSE the floodgates... to keep Congress under control. The ConCon will be self limiting. Remember... once 34 states pass the resolution, THEY are in charge.... not Congress. Congress will have no say-so whatsoever... they can't influence it or do anything about it. Those people who worry that Congress will elect the delegates or control the convention don't have any idea how a convention works. It's all detailed in the Resolutions from the states, and Congress is required to follow those instructions. (Once the 34 states pass it, they, in essence, outrank Congress.)

Here's the bottom line: One-sixth of the national economy was socialized by Congress recently, and unless we actually find a way to block it, we're all living with this socialism forever: Government instructing us as to what we must purchase, and what we cannot purchase.

There is only one way to actually block it. The lawsuits will not work, according to legal scholars. (The courts will side with the new law.) Repeal will not work, because Obama will veto it, and we don’t have the votes to override his veto. Nullification by the states will not work. The courts have already said so. And waiting until we have a new president in three years, and hoping we have a big new congressional majority also will not work, even if it happens, because by then, the majority of the American people are receiving the "free" medical care -- an entitlement like Social Security -- and they will not support taking it away.

The ONLY way to stop Government-Run Heath Care is with an Article V Constitutional Convention, which was included in the constitution by the framers to allow the PEOPLE to overrule an out-of-control Congress, which is exactly what has happened here. THIS is the exact situation our forefathers were worried about when they gave THE PEOPLE the right to overrule Congress.

A Constitution Convention will be called for one purpose only -- ending ObamaCare. Even if they TRIED to do anything else, they certainly could not get it ratified by 38 states! (Remember, the ratification of the amendment by the states is the ultimate safeguard. Ratification is far from automatic. The last amendment added to the Constitution (the 27th, dealing with Congressional pay raises) took 203 years for be ratified!

Thank you for your attention to this matter.

Sincerely,
Andre Bauer
Lieutenant Governor
State of South Carolina

Dear Lt Governor,

Thank you very much for the time trouble and courtesy of your reply to the hundreds of people that I am confident responded to you regarding a Constitutional Convention. My goals are the same as yours and if I can be convinced I will be eager to raise my voice and roll up my sleeves to aide you. Times being what they are I could even be talked into taking on a job to assist. The questions regarding the process are well known and I hope that you can address them specifically. Many years ago Arthur Goldberg and others addressed them. If you do a search under the terms "Arthur Goldberg Constitutional Convention all the arguments come up. Whether they prove right or wrong they need to be addressed in legal terms.

The unifying point in your exhortation to call a Convention, and the locus of most arguments against a Convention, is the issue of whether State Legislatures will have sufficient control over the three key parts of the process;
1. the selection of delegates,
2. the setting of the agenda and proposal of Amendments,
3. the ratification process.

Article V does not say that the delegates shall be selected by the State legislatures. If there is any possibility that Congress could establish some alternative procedure then the entire project will need to be seriously reexamined. There is no room for wishful thinking or an assumption here. Even the selection of delegates through the Legislatures will be fraught with peril but there is no system more likely to yield an honest result. The proven ability of David Axelrod to arrange for the packing of caucuses in 2008 means that any alternative process will be open to hijacking by the likes of Acorn. The recent example of the Health Care bill demonstrated that even Representatives selected through a formal and traditional process can be suborned in a display of naked vote buying unseen since Lyndon Johnson left Congress. Given that even the most carefully supervised selection of delegates may not work, any untested procedure should be viewed with the deepest suspicion.

Once the delegates are set and the Convention meets then neither the Congress nor the States will have any control over the proceedings. All sources seem to agree on that. If it was not true then the current US Constitution would be subject to dispute as being itself the product of a runaway convention. The initial rules however will be set by the Congress and could be framed so as to at least initially paralyze the Convention or empower some minority faction.

Congress can decide that any Amendments will have to face ratification through State Conventions. There is no clear statement on whether Congress gets to set the rules for calling such State Conventions. All the concerns mentioned above regarding the initial selection of delegates apply here again. Your assurance that proposals on other issues would not get past the States lacks specificity. All proposed Amendments would come from delegates selected by the same process with the same level of local support and would have equal chances of being ratified. If the Convention reported out a proposal to repeal the 2nd Amendment or to Nationalize communications or to in fact nationalize health care and the insurance industry, those proposals would have the same chance of being adopted as any which we desire. What a Convention does is remove the intended ability of Senators to reject Amendments that reflect passing passions and narrow regional interests. That power of the Senate was clearer before the unfortunate adoption of the 17th Amendment. As you note yourself, barring a new Amendment limiting any future proposed Amendments to some time frame before ratification fails, the proposed Amendments may survive accumulating State approvals for over 200 years. It is merely a custom to include in most recent proposed Amendments a seven year window.

There are several issues that I would like to see addressed for the improvement of what even now is the most nearly perfect framework for government that human minds can conceive. The unclarity of Article V itself could be addressed. The ill effects of the 17th Amendment have been mentioned. Firmer rules regarding Judicial Review and the mechanics of establishing eligibility under the "natural born" clause could help. The key thing as the physicians say, or used to, is to do no harm.

For the courtesy that you and your staff show in reviewing this I thank you. It is my hope that you will use these points as a template to craft an effective response to these concerns, before they are raised by those of ill will, and forge a winning strategy to protect our Constitutional heritage.

Sincerely,

(LoTM)