Today, November 10, 2015, is the 40th anniversary of the sinking of the ship Edmunds Fitzgerald made famous by the song of the same name sung by singer Gordon Lightfoot. But another ship might be heading toward disaster tomorrow, the ship of our Constitution, as a group of about 81 state legislators from 31 states meet as a self-styled group calling themselves THE ASSEMBLY OF STATE LEGISLATURES.
Yes, this is the same group of Republican and Democrat legislators that have previously met in Mount Vernon and in Indiana to discuss what can be done to engage delegates or commissioners from the State in a never before held Article V Convention.
Utahans might ask whether the “Assembly” is meeting under assumed authority rather than Constitutionally-delegated authority, to write rules or procedures that their group believes a future Article V Convention will follow if enough state legislatures apply to Congress to call the Convention?
Who are the few Utah Legislators who have met with The Assembly of State Legislatures (legislatures not legislators you’ll notice) in the past? The three are Utah State Senator Wayne Niederhauser, Utah State Representative Lowry Snow, and Utah State Representative Ken Ivory. Interestingly writer Bob Bernick informed Utahans that: “[Utah State] Rep. Ken Ivory, R-West Jordan, is chair of ALEC’s Federalism Committee where he’s been pushing various states’ rights issues,….” We will read more about ALEC later.
If, like most Americans and most Utahans, you’re not familiar with Article V of the Constitution, you may soon wish you were now that the Constitution is in the sites of this group of legislators bent on bringing on a convention to propose what could be a multitude of revisions, called amendments, to our Constitution.
Just what does Article V of the Constitution say? Here is the actual text from the Constitution:
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratifications may be proposed by the Congress: Provided, that no amendment which may be made prior to the year 1808 shall in any manner affect the first and fourth causes in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.” – Article V, U.S. Constitution.
The Congressional Research Services published this summary of what Article V provides for:
“Article V of the U.S. Constitution provides two methods by which the nation’s founding charter
may be amended. The first, Amendment by Congressional Proposal, requires the adoption of an
amendment or amendments by a two-thirds vote in both houses of Congress; the second,
generally referred to as the “Article V Convention” method, authorizes the states to apply to
Congress for a convention for proposing an amendment or amendments. If the legislatures of
two-thirds of the states, 34 at present, do, in fact, apply for a convention, Congress is obliged to
convene one. Both methods then require the approval of three-fourths of the states, 38 at present, in order to become part of the Constitution.”
For 226-years Article V of the Constitution has been in operation, but only the first method of proposing amendments whereby Congress proposes Constitutional amendments to the State legislatures or State’s ratification conventions has been utilized for proposing amendments. That first method is in fact the Article V process that was used to give us the “Bill of Rights,” the first ten amendments to our Constitution.
In all twenty-seven Amendments to our Constitution have been both proposed and ratified as part of our Constitution. In fact one amendment, the 21st, was passed to repeal the 18th amendment. Amendments, once ratified of course, change our Constitution, sometimes in very big ways. The process followed for passage and ratification of twenty-seven amendments provides for us some valuable precedents of Article V operation throughout over two-centuries of operation in Congress and among the States.
Americans may be surprise to learn that the second method of proposing amendments, the untried method, a Constitutional Convention under Article V of the Constitution, is very close to being launched. At this time twenty-seven State Legislatures have passed similar resolutions to apply to Congress to “call” and Article V Convention. That is only seven short of the needed thirty-four states.
What makes these twenty-seven application resolutions similar? All of them are applying to Congress to call an amendments convention so that a Balanced Budget Amendment (BBA) can be proposed. Some of the applications even suppose that the Convention can be held to proposing just that one amendment, though there has never been an Article V Convention held to prove that the supposition is correct.
During the 2015 legislative session in Utah’s Capitol building three application resolutions were sponsored: HJR3, HJR14, and HJR7. HJR3 and HJR14 were defeated, but HJR7 sponsored by Utah State Representative Kraig Powell, a Republican and a lawyer voted in to represent District 54 that encompasses Summit and Wasatch Counties in Utah, was passed through both houses.
Even though Utah’s legislature had passed HJR15 in 2001, a rescission resolution to rescind all previous state applications to Congress to call the Article V Constitutional Convention, State Senator Wayne Niederhauser favored passage of HJR7, a new BBA-based application resolution similar to one rescinded by the 2001 legislature without a dissenting vote in either house.
As an early 2015 press conference featuring Ohio Governor John Kasich ended, Senator Niederhauser proclaimed concerning his desire to see HJR7 passed: “We’ve got to do something.” I told him, “I hope it isn’t something as bad as General Custer did at the Little Bighorn.”
A subsidiary of the American Legislative Exchange Council (ALEC), had been flying Governor Kasich around a number of state capitols to have him stump for similar application resolutions in Wyoming, South Dakota, then Utah, and later Idaho and Montana.
ALEC was established in 1973 and boasts 2,000 legislators as its membership out of over 7,000 State legislators within the fifty states, hundreds of corporations, and many think tanks. ALEC is in favor of the 6,000-page Trans Pacific Partnership (TPP) about to be considered by Congress, an economic and political partnership that would, if passed, entangle the USA with eleven Pacific Rim nations and give multinational corporations power within new supranational governmental structures, tribunals, and commissions.
On June 8, 2015, writer Bob Bernick posted a post in “Today At Utah Policy” where Bernick wrote: “[Utah] Senate President Wayne Niederhauser, R-Sandy, is the treasurer of the American Legislative Exchange Council (ALEC).” Bernick went on to write, “[Utah State Senator Wayne] Niederhauser was also in charge of writing proposed rules for a group – the Assembly of the States — that supports calling a constitutional convention of the states – which, if successful, would be unprecedented in the history of the country.”
Bernick wrote: “Niederhauser was also in charge of writing proposed rules for a group – the Assembly of the States — that supports calling a constitutional convention of the states – which, if successful, would be unprecedented in the history of the country. He has since been promoted to the Assembly’s executive committee, which runs the organization.”
So we can see that State Senator Wayne Neiderhauser is not only ALEC’s treasurer, but also a member of The Assembly of State Legislatures (ASL) with a leadership role. And ASL, like ALEC, is another key organization made up of State legislators seeking the Article V Convention’s call by Congress. He’s in this Article V Convention movement pretty deep, but one wonders how many Utahans, how many of his constituents asked him to promote the calling of an Article V Convention to propose amendments to their Constitution?
Another question that ought to be asked of the members of the Assembly and answered is this: “Did the state legislatures of the fifty states create The Assembly of State Legislatures, or is it a self-appointed body?” If the legislatures did not create ASL did ASL membership create itself as an organization without any authority from the people of the United States? Without authority from our Constitution and without a delegation of power from the people of the United States, can this assembly have any legitimate power over the rules for an Article V Convention for proposing amendments to our Constitution, or does the real power lay in either Congress or within the membership of delegates to the Article V Convention itself once called into being?
Have the legislatures from the fifty states asked members of the Assembly of State Legislatures the question: “Where in Article V is the Assembly of State Legislatures delegated any authority over the Article V Convention?” You, dear reader, can read the language of Article V as earlier posted in this article and you will not find any such authority delegated to any group of state legislators, but there is authority delegated to Congress to “call” the Article V Convention. It seems then that the actions of ASL membership is an assumption of an authority not delegated by the Constitution, doesn’t it?
What power does Congress believe it has been delegated to it by Article V and other provisions of the Constitution concerning the Article V Convention? In 2014 Congressional Research Services Report on the topic of The Article V Convention we read this recitation of powers and duties that Congress lays claim to: “Congress has traditionally laid claim to broad responsibilities in connection with a convention, including (1) receiving, judging, and recording state applications; (2) establishing procedures to summon a convention; (3) setting the amount of time allotted to its deliberations; (4) determining the number and selection process for its delegates; (5) setting internal convention procedures, including formulae for allocation of votes among the states; and (6) arranging for the formal transmission of any proposed amendments to the states.”
Hmmm….”setting internal convention procedures,” isn’t that what The Assembly of State Legislatures is trying to lay claim to having power to do? Who is right, Congress or the eighty legislators assembling this week as the ASL at Utah’s State Capitol building? As one who has studied Article V and the arguments swirling about an Article V Convention for twenty-four years, I’d place my bet on Congress.
Before I use that term “Constitutional Convention” again I better warn you that today’s proponents of an Article V Convention get pretty mad when that term is used to describe the Article V Convention, but should they get mad? If one reads the definition of the term “Constitutional Convention” as defined by Black’s Law Dictionary it is very clear that the Article V Convention to propose amendments to our Constitution is the very definition of a Constitutional Convention.
“A duly constituted assembly of delegates or representatives of the people of a state or nation for the purpose of framing, revising, or amending its constitution. Art. V of the U.S. Const. provides that a Constitutional Convention may be called on application of the Legislatures of two-thirds of the States.”
November 11th, The Assembly of State Legislatures meets in Utah’s capitol building, but is it truly the legitimate body to decide for three-hundred-and-thirty-million Americans what the nature of a Constitutional Convention will be? Will its deliberations produce procedures that an Article V Convention will use, or will Congress or the Convention delegates themselves actually rightly provide such procedures?
Is America ready to open up the Pandora’s Box of an untried Article V Constitutional Convention? How many Americans are even aware that their present Constitution hangs by a thread, an Article V thread that is quickly getting thinner?
Will 2016 bring the seven more application resolutions need to trigger the convention from states like Idaho, Montana, Wyoming, Wisconsin, or Minnesota targeted by groups like Convention of The States, ALEC, or the Assembly of State Legislatures for the convincing of state legislators with those states to apply to Congress to call the Article V Convention? Or will Americans in those states help their legislators resist the siren calls that could drive our Constitutional ship upon the rocks of an Article V Convention?