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Article V – The voice of the people?

April 6, 2015

Article V of the U.S. Constitution is perhaps the most definitive recognition by the Founding Fathers that even their best attempts to provide a framework to assure a just, balanced and representative government might be co-opted, corrupted or simply unresponsive to the needs of future times.

While the amendment process is mostly left to the Federal government, Article V does provide a mechanism for changing the Constitution that permits more direct citizen involvement, although it requires the states to petition Congress to permit a Constitutional Convention.

Article V reads as follows:

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 Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses 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. (Italics and bolding added)

The bolded items are the basis for the many attempts to call constitutional conventions, including the one being advocated now.  The closest any have ever come to fruition was in the 1970’s and 1980’s, with the focus at that time, as it is now, being the creation of a balanced budget amendment, a popular conservative theme.

Congress has headed off the more serious of these attempts by making a show of addressing the concerns  driving the movement, with the closest success for the citizens being the 1995 vote to create a balanced budget amendment that was quashed by the vote of the late then-Senator Mark Hatfield (D-OR).

Clearly, the founders intended that only a super-majority of states could actually compel change, even if they could successfully mount such a convention.

Even the provision requiring Congress to honor the applications for a convention does not tell Congress WHEN it has to call the convention, only that it must approve the petitioner’s request.

It doesn’t even define whether the states can collectively sign one petition, or whether each state has to submit its own petition.

It also doesn’t address what happens if Congress decides to invalidate an individual state’s petition, or on what grounds it may do so.

Although mindreading is a poor substitute for insight, the Founding Fathers  may have been hoping to head off a coalition of crackpots by making the process deliberately difficult.

Why all the angst?

Given the current influence of the radical wings of the two largest political parties, there is still serious concern that holding such a convention might create more problems than it solves.

Unfortunately, the Founding Fathers didn’t clarify whether such a convention could propose more than one amendment at a time. The current movement to call a convention is focused once again solely on getting the Balanced Budget Amendment approved, since Congress didn’t follow the will of the people 40 or so years ago, and shows little inclination to do so now.

While that seems like a laudable mission, detractors of the convention idea point out with some justification that in theory, all sorts of whacko ideologies or even just too many otherwise legitimate issues could be added to a petition that would throw the country into political turmoil.

That concern is sparked by the fact  that no Supreme Court decision has ever been made concerning the scope of such conventions or the rules for petitions demanding one.

First things first

That leads one to suppose that maybe the first order of business for the convention supporters should be to ask the Supreme Court for that clarification.

That’s easier said than done. Given that any Supreme Court decision is based on ruling on lower court proceedings, SCOTUS would not have an issue to rule on unless the States could actually get a convention petition together and then include more than one issue for consideration.

If Congress denied the petition on the grounds that there was no provision or existing law permitting that, someone would have to challenge that decision through the judicial process.

Given that it takes years to get anything before SCOTUS,  and the fact that elections for both state and federal office-holders are held every two years, it’s doubtful that Article V supporters could hold a coalition of states together for that long based on one hot-button issue.

Take the “Balanced Budget”  issue.  If economic times get better, as they did in the mid-1980s and ’90s, all of a sudden no one cares if the governments’ books balance and all the impetus recedes.

Unless of course, the convention supporters were to address Article V itself, by splitting away the rights of the states to call a constitutional convention from Article V and incorporate the intent of that inconclusive wording to create a modern platform for the mechanism.

Even the staunchest defenders of the Founding Fathers admit that they could not have possibly foreseen the size and complexity of the political processes of today, much less the phenomenon that is social media.

Why bother?

Except for a relatively few idealistic political junkies, no one believes that elections are about the voice of the general population in the 21st century. The voice of the people is now in the cloud.

The effects of those collective electronic voices are far more lasting than an errant tweet.

In the past decade the world has seen whole governments violently deposed and entire populations decimated  by the tangible power of the electronic word.

Still, it’s currently the only mechanism available to the common man to express discontent and advocate for change that the population feels isn’t controlled by politicians bought and paid for by big-money special interests.

So far, that hasn’t proven to result in a stable form of change. It’s been more about inciting violence and mob rule than anything resembling a democratic process.

Governments do recognize the threat imposed by the so-called “power of the tweet.” There’s a reason why governments take over the internet and control it in their countries.

Even in the United States, it is unlikely that putting the internet under the auspices of the FCC was only about giving everyone a level bandwidth playing field.

Providing a reasonably efficient constitutional ability for people to effect change might forestall a lot of the uncontrolled energy misdirected today.

Given the Fed’s propensity to overturn or ignore any state law they want to just because they can, it would seem to behoove Article V supporters to properly codify the rights of citizens to amend the nation’s governing document prior to using it to advocate for any specific law or change to an existing law.

As frustrating as it may be, it seems like getting the language and intent of a law right has to come before using it.

From → op-ed

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