A Limited Convention to Amend the US Constitution: Fourth draft

Yes, it can be done.  A limited Convention to amend the US Constitution can be held.  If, before sending an application for an amendment Convention to Congress, the State ratifying conventions are organized and they give a credible guarantee beforehand that they will vote to ratify only one specified amendment that is the product of the national Amendment Convention, and the State legislatures do likewise, then the Amendment Convention will be a limited Convention.

I want your feedback on this fourth draft of a prescribed application for an amendment application to create an agency tasked with enforcing the Constitution on the Federal government. This application for amendment fixes the problem of out of control Federal government by splitting the Supreme Court into a Federal Court and a Constitutional Court, and empowering the Constitutional Court to enforce the terms of the Constitution on the Federal government.

The working theory of this draft application is as follows:  A preconvention will be held, made up of persons independent from the State and Federal legislatures and the political parties behind them.  The preconvention will define how the State ratification convention and national amendment drafting convention will be formed, how they will be organized, and how they will function.  The States, presumably through the State Governors, will arrange for the creation of the State ratification conventions and the elections of their delegates.  The preconvention will refine this draft application until it takes a form acceptable to three-fourths of the State legislatures and three-fourths of the State ratification conventions.  Each State legislature, after affirming a guarantee from its State ratification convention, will give its guarantee, presumably requiring its members by law, to support the terms of the application only.  After thirteen, (one-quarter plus one, enough the prevent the ratification of amendments)  of the State legislatures give their guarantees, the approving States give their common application to Congress.  Congress calls the Amendment Convention.  The Convention creates the amendment and any supporting work products.  Congress chooses to send the amendment to either the State legislatures or State ratification conventions for review and approval.  The chosen ratifying body reviews the amendment and work products for conformance to the application and elects to ratify or not.

Most likely, the Governors would appoint small groups of two or three people to represent their State in the preconvention.  The people who make up the preconvention would make excellent heads of the State ratification conventions.  One possible approach would be to have half of a State’s delegates to the preconvention be heads of the State ratification convention and the other half be delegates to the Amendment Convention.   That way the intentions of the preconvention would be better carried into the Amendment Convention, and the intentions would be better understood by the ratification conventions.

Preconvention delegates would probably be non-partisan persons, probably legal experts, along with, hopefully, people with engineering backgrounds, because engineers are great at creating work processes.  People who have run for partisan office in the past would be generally poor candidates because they are typically burdened with political debts.  They are tied to the political parties, and, whether devoted party members like to recognize it or not, the hyper-partisan mindsets of the political parties are part of the problem of abusive and negligent Federal government.

Because the State convention represents the will of the people, not the will of the people defining the terms of application, it would be inappropriate to predefine the form of the guarantee given by the State ratifying conventions.  Rather, it would be up to each State convention to come up with a form of guarantee that its legislature would find credible; but, probably, the convention members would come up with terms of the guarantee, and vote on the matter.  If the State legislatures were comfortable with the guarantee of the State conventions, then the legislatures could give their guarantee and when two-thirds of the States agreed, they would send their common application to Congress.

You may leave comments in the comment section of this web site, or you may email me directly at scott@amorian.org.

My revision notes are in the comments of this article.

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State Application for a Convention to Amend the Constitution of the United States per Article V of the Constitution

I. Theory of Law

When the Framers were completing their draft of the Constitution of the United States of America, they were open about the fact that while the Constitution created a more perfect Union, it was incomplete and had flaws. Some, such as George Mason, were certain the Constitution’s structure would inevitably lead to the Federal government becoming a tyranny. So the Framers wisely provided not just one but two devices through which future generations would have the honor of improving their great work. They established a congressional amendment process to allow the Federal government to make changes to the form of government to better fulfill its duty to serve the purposes of the citizens. And they established a State’s amendment process so the citizens could make needed changes to their Constitution with the support of their respective State governments in the event that Congress could not or would not make necessary or desired changes.

The Framers constructed the US Constitution as a liberal constitution. A liberal constitution is a contract held freely between citizens to establish a government. As with all contracts between free people, a liberal constitution is made freely, voided freely, modified freely and retained freely with all power of choice in those matters resting ultimately with the desires of the citizens and no other party. When such a contract ceases to serve the purposes of free citizens, the citizens are right to modify or even end the contract, retaining only their shared obligations to outside parties which were made under the contract.

It is an established and self evident principle that citizens of a liberal nation must not change their constitution for “light and transient causes.” The peace and happiness of the citizens of any state or nation depend greatly on the stability of their government. Change, when it is proper, addresses only the good purposes, limits and organization of government, and the citizens’ obligations to support that government. When good purposes of liberal government are not being fulfilled or good limits placed on government are routinely violated because government is organized in such a way that it can not fulfill its purposes and respect its limits, free citizens are right to make necessary changes to the organization of their government.

The citizens of these United States give notice to their Congress that the Federal government is not performing the good purposes stated in the United States Constitution; that the Federal government routinely exceeds the good limits in the United States Constitution; and that the ultimate cause for the lack of performance and the excesses of the Federal government are found in the construction of the Federal government. For those reasons, in keeping with the terms set in Article V of the United States Constitution and the principles of good government that the Constitution stands upon, the citizens of these States seek to repair our form of national government.

Some might misconstrue this application as a condemnation of the many fine people working in the Federal government. This application is an acknowledgement that the Federal government was organized by the people’s document, the Constitution, in such a way that not only invites abuse, but almost necessitates it, as a great many of the fine people working in government can attest to with innumerable examples. This application is an effort to correct the primary structural flaw in the organization of the Federal government, not an attempt to blame any persons for its many problems. Through this application, we, the people of the United States of America, accept our responsibility for correcting the primary problem in our document; the problem being found in the structure of government, which is the lack of sufficient enforcement and oversight of the US Constitution with respect to the operation of the Federal government.

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II. The Facts Applied to the Theory of Law

The citizens of these States present the following facts which, though neither complete nor detailed, are sufficient to illustrate the results of critical problem of the inability of the Federal government to perform its duties. Each illustration is a demonstration of the lack of enforcement of the Constitution:

The Federal government enriches one generation, running up an obscene debt of trillions of dollars, charging the repayment to successive generations who not only have no right to vote, but many have not even entered the womb.

The Constitution permits Congress to take money from the citizens as taxes to support the “general welfare” of the citizens. The term “general welfare” in the Constitution is a generic reference to government powers defined explicitly in the Constitution. It was never intended to be a grant of permission to Congress to spend money on anything and everything Congress deems the “general welfare.” Yet Congress in a gross, blatant, and intentional misinterpretation of this phrase pretends that it is empowered to take and spend all the citizen’s money it wants in the name of supporting the “general welfare.”

The Federal government has run for years without a necessary and proper budget, choosing instead to devote its energies to practicing endless factionalism. Such is the inability of the Federal government to use due process when managing the people’s finances.

The Constitution gives to Congress and no other persons the power to declare war. But the War Powers Act gives the President the power to execute war as recognized by the actions of war. The members of Congress, recognizing that their approval of acts of war can be held against them at election time, have delegated their right power to the Executive for the purpose of their own political expedience.

The Constitution requires that only Congress regulate money. Yet Congress has dispensed of this obligation, assigning its duty to commercial bankers.

The Constitution requires that States use only gold and silver as legal tender, but no State does so today. The Federal government has made paper money legal tender contrary to the writing in the Constitution.

The Constitution allows only Congress to make Federal laws. Yet the Federal Court routinely make laws, sometimes in conflict with the letter and intent of the Constitution. Once precedence is established, the bad laws created by the Court are very difficult to undo.

The Constitution permits the President to make orders necessary to execute directives from Congress. The President routinely makes laws as recognized by their effects under the guise of executive orders, thereby circumventing the legislative power of Congress.

The Federal government expands its laws continually. It seems to desire to regulate every object in every person’s household. It even insists it has the right to regulate the air in every breath we breathe, the water in every drop we drink, and the earth under every step we take.

When war is fought, government is obliged to declare war, and attempt to win, or if it cannot, to remove itself and make any proper reparations. Yet, the Federal government, in Korean war and Vietnam war, involves us in undeclared wars as recognized by the actions of war, and spills the blood of young soldiers without being clear about the purposes of the war and without attempting to win.

The balance of powers was intended to reduce the severity of violation of the obligations and limits of the Constitution. But when the branches of government find it mutually beneficial to ignore those obligations and limits, they occasionally collude to do so.

Elected officers are meant to represent the citizens in a fair and balanced way. Yet, the practice of accepting bribes openly in the form of campaign donations leads to influence of legislation that favors the wealthy at the expense of those of modest means.

Congress passes laws without giving the legislators sufficient time to read and understand them. This is not due process, yet the laws stand.

Congress passes laws based on “horse trading” for votes on bills, so a great many laws are not passed because of merit, but for the purposes of political expedience and advantage of the legislators. Many laws are proposed, not for the purpose of the law, but for the purpose of political gamesmanship. The politicians, not the people, are being served by these actions. Such laws are not “necessary and proper,” yet the people find themselves subject to those laws.

Congress regularly and intentionally lies to the public with regard to taxes, saying they are decreasing taxes, when they are actually they are increasing taxes.

Congress applies endless techniques to hide taxes from citizens, so that most citizens are unaware of the amount of taxes they pay to the Federal government.

The Constitution gives Congress the power to regulate commerce to establish an even playing field in trade practices between States. Yet, Congress knowingly abuses this power, giving to itself an alien right to regulate in any way any and all items simply because they cross a State line.

When apportioning congressional districts, the dominant political parties draw the district borders in such a way that they help secure the continued dominance of that party in a political practice called “gerrymandering.” This creates an unfair and unbalanced political playing field that gives preference to the desires of the politically powerful instead of the needs of the citizens.

The Constitution establishes the election cycle with the intent of preventing the creation of bad laws and actions by giving the citizens the power to remove bad officeholders. But when the bad officeholder creates bad laws and actions, and the voters replace the bad officeholder with a new officeholder, the bad laws and actions remain in place. The bad laws are not undone. Over time, the bad laws and actions accumulate and become instruments of abuse by all officeholders.

The Constitution assigns the duty of enforcing the constitutional limits and obligations of government on government to the Court. But the Court is the creation of the Legislature and Executive. This is like having criminals appoint their own judges, as well as operate the various departments of justice.

The Constitution gives the President the power of veto of undesirable laws. Congress circumvents the wisdom of the principle of veto by packing the undesirable laws into single writings of legislation that also contain desirable laws, and then saying the package, not the individual laws within it, is a bill. Through this abuse of process, the President does not veto the individual undesirable laws.

The Constitution gives only Congress the power of impeachment. But when Congress abuses power in gross ways, and the President colludes and supports the abuses, Congress will not impeach the President for committing the miserable acts they were a party to. Only the citizens, in next election cycle, can remove the abusive President from office. Many of the acts committed remain in place after the next President is elected.

This handful of examples is only a partial illustration of results of an imperfection in the Constitution, and how ineffective and abusive the Federal government has become. A detailed list of complaints would require at least a small book to cover fully. These illustrations are sufficient to represent the necessity and urgency of making deep reforms.

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III. Request for Judgment and Reparations

For the reasons illustrated by the above and more, the citizens of these States seek to modify the form of the United States government to correct the cause of those failures.

The cause of the Federal abuse was known during drafting of the original Constitution. The Constitution lacks sufficient enforcement of its limits and obligations. The Framers gave the Federal Government the positive powers of making laws, enforcing laws, negotiating with other nations on behalf of the States, and collecting taxes, but they also made that same body responsible for ensuring that it did not abuse its powers. That is like putting thieves in charge of enforcing the law on themselves. Such an arrangement must end in corruption and tyranny.

The more than 230 years of United States history have proved that the established instruments for limiting the Federal Government are insufficient in the purposes. The citizens have used lawsuits against the government. We continually vote bad office holders out of office. The balance of powers is weakened by acts of collusion between the Legislature, Executive, and the Court. The Court, where the power of enforcement of the Constitution should lie, is a creation of the Legislature and Executive, which is like having two gangs of thieves in charge of appointing their judges. Despite the use of traditional instruments to keep the government proper, the corruption in government continues to grow. The demonstrated inability of the established instruments of governmental control gives us cause to seek a more effective way to address Federal non-performance and impede excesses.

For those reasons, in keeping with Article V of the Constitution and the intent of the Framers, the good citizens of two thirds of the United States send this application for a an Amendment Convention to the Constitution to the Congress of the United States of America. We remind Congress of its duty to call a convention

Because the imperfection in the Constitution has negatively affected the integrity of the Federal Legislature, which is one of the two sources in Article V for amending the Constitution, the citizens of this State have no choice but to require the alternative, the Amendment Convention, to amend the Constitution.

These State condemns any attempts by the Federal Legislature to pursue any purpose similar to those set in this application, because these States will not have, in effect, the thieves making “improvements” to the justice system after being caught stealing. Today’s Congress is famous for its prodigious ability and willingness to exercise legal slight of hand, so Congress is poorly suited to this task.

These States recognizes that, as a practical matter, before the citizens can require and approve a call for an amendment, the character of the amendment, as well as the process for creating it and implementing it, must be defined in enough detail to give the citizens sufficient cause to support, require and approve it; and it must be solidified enough in its form that the citizens will not doubt that the amendment’s purposes and processes that they have supported, required and approved will be implemented without variation. Reasonable people will not support something vague and uncertain that could have profound effects on their lives, their freedom and their happiness. To ensure the trust and confidence of the citizens of the United States in this most serious of national matters, these States establish as a matter of necessity that all of the processes described in this application and only the processes described in this application must be followed exactly and that all of the purposes described in this application, and only the purposes described in this application be fulfilled by the members of Congress, the States and the Conventions. If the processes are not followed exactly, or alternate purposes are attempted, the members of these States’ legislatures require themselves by law, subject to penalty, to refuse assent to the proposed amendment. Likewise these States require their members by law, subject to penalty, to refuse assent to any other proposed amendments that are produced by the Convention that is called as the result of this application.

To ensure our citizens that the State legislatures will not undermine the people’s good faith in government, each applying States legislature shall bind by law the promises found in this application. To that end, each applying State shall hold any government official who attempts to knowingly ignore the promises made in this application to be in violation of State law. Each applying State charges its police to with arrest for trial any member of its State government who reneges on these promises. Each applying State charges its judiciary to try such persons for crimes against the State. No pardons may be given to any tried person if found guilty. Because of the seriousness of the business at hand, the punishment if found guilty shall be ten years in prison.

Article V allows Congress choose a State convention process to give a final vote of approval or disapproval for ratification of the amendment. A State convention must be a citizen’s convention, completely separate from the State legislatures, otherwise the same legislature that would approve or disapprove the amendment directly would be able to approve or disapprove it indirectly by manipulating the State convention. That would violate any purpose in having separate processes for ratification. Therefore, to minimize opportunities for manipulation by the State legislatures, this application must define how the possible State conventions will be organized and run. This will serve the purpose of Article V of giving Congress the choice of using State conventions or State legislatures to vote on the amendment in case Congress doubts the properness of having one or the other vote on ratification.

Once a State applying for the Convention elects to approve the proposed amendment, it may not rescind its decision. The Application is a power of the States, not the Federal government, so the States, not the Federal government, determine the propriety of the application; no limitations of any kind may be applied by the Federal government. The only power of choice of the Federal government in this matter is the choice of ratification methods. If the Federal government refuse to act in accordance with Article V by calling for a convention, these applying States consider that inaction to be intentional interference with the duties of the officers of the respective States, and as such, may be prosecuted by any of these States.

In the event that Congress knowingly neglects its Constitutional duty to call for the Convention, each applying State shall notify its Congressional representatives that it is proceeding with the Convention without the acknowledging call from Congress, and that the Convention is called.

In the event that Congress knowingly neglects it Constitutional duty to select a ratification method, both methods, the State Legislatures and the State conventions, must ratify the proposed amendment.

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IV. Proposal

The legislature of this State shall only vote “Yes” to approve the proposed amendment only if it meets the following requirements and no others. The Amendment shall do the following:

Split the Supreme Court into a Federal Court and Constitutional Court.

Remove the Constitutional Court from the domain of the Federal government.

Make the Constitutional Court an employee of the citizens with fiduciary duty to the citizens instead of the Federal government.

Have the citizens set the Constitutional Court’s budget.

Have the citizens determine the Constitutional Court’s general rules for operating.

Have the citizens appoint and remove the head of the Constitutional Court at will through their State legislatures. Require that 55% of all State legislatures submit an application saying simply that the State requests a recall election of the named President of the Constitutional Court. Have Congress, in a clerical role, receive the applications and call a national recall election for the President of the Constitutional Court, and do so with fourteen days of receiving the determining application. Failure by members of Congress to act appropriately may be justiced by any State as an offense against that State.

Have the Federal government collect the Constitutional Court’s finances through the Federal tax system.

In the event of a recall election, require the States to hold the election within 60 days of the final State’s request for recall.

Require a citizen’s vote to determine whether the President of the Constitutional Court is recalled. Require a 60% majority to recall.

Empower the Constitutional Court to adjudicate on Constitutional issues only.

Empower the Constitutional Court to impeach any federal office holder. Requires the Senate to try all impeached officers, except Senators. Empowers the Constitutional Court to impeach and try Senators.

Empower the Constitutional Court to proactively address violations of the limits of the Constitution by the Federal government and its office holders.

Empower the Constitutional Court to proactively address abuses of the Constitution by citizens who attempt to create an unbalanced playing field by acts of office holders, such as bribery.

Empower the Constitutional Court to arrest and try persons for abuses of the Constitution.

Empower the Constitutional Court to void laws of Congress and acts of the Chief Executive without need of lawsuits from the citizens.

Establish the Federal Court as an organ of Federal government, continuing the role of the current Federal courts with respect to Federal legislation.

Empower the Federal Court to adjudicate on Congressional legislation and Executive acts only.

Deny immunity to all persons found guilty of a crime by the Constitutional Court exception foreign ambassadors.

Empowers the Constitutional Court to remove ambassadors who abuse their rights with respect to the Constitution.

Require as an additional security, a national vote of the citizens before this proposed Amendment can be approved. Require only a majority vote of the citizens for approval.

Forbid all persons from interfering with the Constitutional Court. Forbid Congress from making any law or amendment affecting or altering the Constitutional Court.

Sustains as temporarily legitimate all existing laws and actions known to be unconstitutional until such time as they may be safely and responsibly reversed.

Permit the Constitutional Court to direct employees of government to act in accordance with the Constitution, subject to impeachment, and possible arrest and penalty, if they fail to do so.

Forbid the Constitutional Court from pursuing penal actions against all persons for acts committed prior to the Court becoming operational.

Require a written contract, separate from the Constitution, for the citizens to form and order the Constitutional Court. This proposed amendment may not define any terms of the new contract except for the fact that it exists, and it is held and controlled by the citizens, and that the amendment empowers the Constitution Court to exercise powers over the Federal government as defined in this amendment.

Require the Federal government to try persons attempting become an office holder in the Constitutional Court using intentional misrepresentation.

Prevent the amendment from going into effect if has not been ratified within 20 years of the States sending the application to Congress.

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V. Procedure

The legislature of these States shall only vote “Yes” to approve the proposed amendment if the following procedures are followed and no others. These States disapprove this proposed amendment if any variation is made in these procedures. Any attempts to intentionally vary from these procedures with the intent to force the disapproval of the amendment shall be considered a high crime against these States. Such criminal acts shall not be cause for disapproval. These States shall arrest and try any persons attempting to sabotage this application process. The minimum sentence for attempting to sabotage this process shall be 10 years in prison without possibility of parole, immunity or pardon, to be justiced by any applying State.

The process for creating the Amendment shall be as follows:

1. These States submit this application to Congress. One copy shall be given to the Speaker of the House. One copy shall be given to the president pro-tempore of the Senate.

2. Congress shall acknowledge that the people of the United States of America have initiated the Constitutional Amendment Convention process per Article V of the Constitution by calling for a Convention.

If Congress fails in this duty, the applying State legislatures shall call for the Convention.

4. Within 30 days of the call for Convention, each legislature of each State and each district or territory of voting US citizens shall select two delegates to attend the Convention. No State, district, or territory is required to send delegates to the Convention. Each State’s convention delegate shall receive a stipend of an amount set by the State’s Governor.

5. Within 60 days of the call for Convention, each State shall select State delegates for the possible State convention in the event that a State convention is used to decide on the proposed amendment. The voters in each county, or equivalent, shall elect two delegates, and one backup delegate in case one of the primary delegates cannot attend. The candidate receiving the most votes and the second most votes shall be the county’s delegates. The candidate receiving the third amount of votes shall be the backup delegate. The State convention shall be valid if two or three of any county’s delegates cannot attend. The State convention delegates shall receive a stipend of an amount set by the Governor.

6. The Governors of the States shall arrange the Amendment Convention, to be held within 90 days of the submission of this application by two-thirds of the States. The arrangement supported by the majority of Governors sixty days after the call for Convention shall be the arrangement for the Convention.

7. The Amendment Convention may not begin until after the delegates for the possible State conventions are selected.

8. The Convention shall complete the draft of the proposed amendment and submit it to Congress. One copy shall be given to the Speaker of the House. One copy shall be given to the president pro-tempore of the Senate. The Convention shall produce a draft of the initial contract for the new Constitutional Court. The Convention shall produce a detailed plan for putting the new Courts into operation. The Conventional shall set the date for the citizens’ national balloting. The delegates are at liberty to establish protocols for completing the drafts of the amendment, and of the initial Court rules, and of the implementation plans. The delegates shall choose a Secretary whose signature shall bind the document. The Secretary’s signature shall indicate the completion of the proposal. No deadline for completing these documents may be set. No limits may be set for topics of discussion.

9. Employees of the Federal government shall not act in any way to influence the outcome of the Convention. To do so will be a high crime against this State, and may be justicable by this State. No employee of the Federal government or their representatives may participate in the Convention in any way. Legislators, judges and members of the executive branch are considered employees of the Federal government.

10. This State considers any attempt by any person to sway its delegate to the Convention using anything except reasoned argument as a crime against this State justicable by this State. The Governors shall provide for all of the needs of the delegates so that gifts such as motel rooms, meals, etc. are not provided to the delegates.

11. Upon its completion and approval by the Convention, the Secretary of the Convention shall sign and date the proposed amendment. Before the passing of four days, the Secretary shall present the proposal to Congress.

12. Within three weeks after Congress receives the proposal, Congress shall submit it for approval to either the State legislatures or to State conventions per Article V. Because the application process assumes that Congress and the Supreme Court are biased, any judgement by Congress or the Court that this application is invalid shall be considered as advisory and not authoritative. This is a well considered action of the people through their State exercising their God given right to repair their form of national government.

13. The applying State legislature may not decide on this proposed amendment until after a preliminary affirmative decision is first made by a majority vote of the US citizens. The citizens’ vote shall be held on a given date within 120 to 240 days after the Convention Secretary signs the proposal. The Convention shall set the date of election. No State is required to hold a citizen’s election. If the majority of the citizens voting in the national citizen’s election do not approve of the proposal, the members of this State’s legislature, under penalty of law, may not decide on the proposed amendment.

14. If Congress submits the proposed amendment to a State convention for approval, the State Governors shall arrange their conventions. To prevent the kinds of abuses known to occur when politicians draw political maps, each State’s convention districts shall be its counties, or equivalent. The Governor and each State convention must make efforts to insulate itself from machinations of the State legislature and, to ensure the integrity of the ratification of the amendment, shall produce reviewable documentation of the measures they took. This State shall treat any attempted machinations by employees of the State or Federal government to influence the outcome of the State convention as a criminal act against the State punishable by five years imprisonment. No State or Federal government employee, which includes all elected officers except the delegates, may be a State convention delegate. Each State convention shall last fourteen days. Each State convention shall begin with the election of a secretary. The State convention shall have approved the amendment only if at the end of fourteen days the secretary determines that the majority of the delegates approve the proposed amendment. The Secretary shall give the results of the convention to Congress to tally. Attempts of fraud by the secretary or the delegates shall be punishable by their respective State by five years imprisonment. For the purpose of amendment approval, fraud must be determined by the State legislature within one month of the closing of the State convention. If a State legislature determines that the fraud may have been sufficient to alter the outcome of the State convention, the State shall hold a repeat of the convention without the offending members present and with two weeks of verification. If the repeated convention is fraudulent also, the process shall repeat until a non-fraudulent convention makes its decision and two weeks for verification have passed. The proposed amendment may not be accepted into the Constitution until the verification time has passed after the last non-fraudulent State convention results are returned, unless the results of any outstanding repeated State conventions will not affect the decision by the States.

15. If Congress submits the proposal to the State legislature, the State legislature shall vote within 61 days of the closing of the final polls of the US citizen’s election. The members of the State legislature shall base their votes only on whether the proposed amendment meets the requirements described in this application, and on whether the procedures described in this document have been followed, and on nothing else. Each legislator voting “No” must publicly state which requirement has not been fulfilled, or which part of the end product is outside the scope of the requirements. Voting for any reason other than requirements and processes shall be a crime against the State as discussed previously in this application.

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VI. Example of the initial rules for the Constitutional Court.

Just as the Constitution is a type of contract, made and kept by the people to have a government, so does the Constitutional Court need a contract defining the limits, duties, powers and structure of the Constitutional Court. Over time the people will improve the rules to bring about more effective operation of the office.

The following set of rules are illustrative and non-binding. These are not intended to be a draft of the initial contract of the Constitutional Court. Rather, this section is advisory. It is intended to help minimize the veil of uncertainty on this subject, by providing examples of the kinds of rules the citizens may expect the Amendment Convention to produce and write into the contract.

The people shall elect a new President of the Constitutional Court after the President resigns, or is removal from office by the people, or leaves office by any other means. The election shall be held within 60 days of the President leaving office.

The President of the Constitutional Court shall appoint seven Justices. One shall be Chief Justice. Congress shall recommend two Justices. The US President shall recommend two Justices. The President of the Constitutional Court shall accept those recommended Justices at his or her discretion or select other Justices. The President of the Constitutional Court shall give preference to the recommended Justices.

The President of the Constitutional Court shall appoint and remove Justices at will.

To keep the citizen’s election processes as simple as possible, the President of the Constitutional Court shall submit a budget to the citizens every two years for the citizens to vote on at the time of the elections of the Federal House of Representatives. The President of the Constitutional Court’s budget shall be identical to the previous budget. Only the proportions of the disbursement of funds between the Court’s internal offices may change. The citizens shall have elective options to increase or decrease the budget in increments of 5% up to doubling the size of the budget or reducing it down as low as 5% of the budget. The average of the citizen’s election shall be the change in the budget accurate to six decimal places. The Constitutional Court may not have deficits. Surpluses must be applied to the following biannual budget, reducing the amount to tax owed by the citizens.

The President of the Constitutional Court shall accept proposals from the States legislatures for changes to the Constitutional Court’s contract biannually with the budget request for the citizens’ vote. The President of the Constitutional Court shall be at liberty to submit any proposal. If 10% of the State Legislatures send a common proposal to the President of the Constitutional Court , the President of the Constitutional Court must submit the proposed rule change for the citizens’ vote. All contract changes must be approved by the majority of the citizens voting.

The Constitutional Court shall receive all complaints from citizens concerning the Federal government’s violations of the citizen’s rights, and shall hear as many of those complaints as possible as permitted by the Court ‘s budget.

The Constitutional Court shall have an investigative bureau to police intentional violations of the Constitution by office holders and citizens. Violations shall include but are not limited to crimes such as bribery and intentional violations of the Constitution by government office holders.

To prevent bribery of candidates for the office of President of the Constitutional Court, Candidates shall not receive campaign money from identifiable persons. Candidates must accept all donations through a clearinghouse with rules for keeping the identities of donators secret. The act of donating money to candidates’ campaigns in a manner that reveals the identity of the donator to the candidate shall be considered bribery of a public official and may be justiciable by any State as an offense against that State.

No Constitutional Court Justice may serve on the Court after reaching the natural age of 75.

The Constitutional Court shall have a high court, and a criminal court. The high court shall act as judge on the Constitutionality of legislation and executive actions. The criminal court shall act as judge for criminal abuses of the Constitution by persons.

The President of the Constitutional Court must be a United States citizen who did not spend more than nine consecutive months living outside of the United States borders, or more than two years total living outside the United States borders between the ages of three and eighteen. For these purposes, the United States borders shall be the borders of the States. Time outside the United States borders by persons who were children of persons serving in US consulates and attending US schools attached to those consulates is not counted as absence.

Before being considered for the office of President of the Constitutional Court or for Justice, of the Constitutional Court candidates must present for public examination proof of citizenship, and must present full relevant historical information such as employment history, military history, educational transcripts and other relevant adult writings and adult actions for public scrutiny. Intentional withholding or other misrepresentations are cause for immediate dismissal from office, and for Federal criminal charges against the office holder.

No person may serve as President of the Constitutional Court if they share a parent, grand parent or great grand parent of a previous President of the Court, or if they are a descendant of a previous President of the Court. Parentage for this purpose is established as six total months of child rearing after the age of three.

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VII. Advice

This Advice section of this proposal is non-binding and intended to be advisory only. This is not part of the proposal. States may modify this section at will without affecting the proposal as long as the text does not attempt to affect the proposal.

1. The Framers did not specify many details of the citizen’s amendment process except that it requires 1) an application of indefinite form from two thirds of the States, 2) Congress formally acknowledge the application by calling for a Convention to propose the amendment, 3) after the Convention proposes the amendment Congress selects either the State legislatures or State conventions to approve or disapprove the proposed amendment, 4) the State convention is of indefinite form, and 5) three fourths of the bodies selected by Congress approve the proposed amendment. The Constitution does not forbid a prescribed form of application, therefore it is allowed. The Constitution does not define the form of the amendment convention or its process, so all forms and processes are allowed. The Constitution does not define the form and processes of the States’ approval conventions, so all form and processes are permitted. In short, they left the door open for the people to do what we thought wise to implement necessary amendments.

2. This applications assumes two conventions. The first is a pre-convention to create the application. This may be organized by any person or group. For example, a State governor may call a pre-convention to address a common application for amendment and invite other States to send attendees. If two thirds of the State legislatures approve of a common draft of the application, they send it to Congress as an application for a Convention from two thirds of the States.

Article V limits the ability of the possibly corrupt Federal government to decide whether the application is valid. The Federal government may refuse an application if it requires the Federal government to act contrary to the Constitution. The application cannot require Congress to use only one designated method for ratification, because Article V requires that Congress choose freely between the two ratification methods. It cannot deny Congress the ability to call the Convention. It cannot deny Congress the ability to verify that the Convention produced the proposed amendment. It cannot deny Congress the ability to verify the ratification or the tally of applying State legislatures. It cannot require the President of the Judiciary to act in specific ways. It cannot require the Convention to propose specific amendments, but an application can state beforehand the conditions a State legislature will use to determine whether to ratify the amendment. If the applying States determine that an abusive Federal government is acting in violation of the Constitution, the States may execute a reasonable remedy. For example, if Congress refuses the call the Convention in a reasonable amount of time, the applying States may call the Convention themselves. The terms of the Article V Convention are meant to permit the States to correct a possibly corrupt government. If two thirds of the States formally approve the wording of a written application and send the single approved copy to Congress, it is a valid application.

3. The Framers understood the general cause of the problem of government that is being addressed in this application. The Federal government lacks sufficient enforcement of the Constitution on itself. A brief sampling of a few of the Federalist Papers illustrates this.

In Federalist No. 48 the author notes this about the balance of powers:

“The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”

In No. 49 the author, in discussing why we have fixed election cycles instead of elections held “occasionally,” meaning without scheduled times, concludes:

“The PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government. We found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose.”

In No. 10 the author notes that democracy is a self destructive form of government. He describes the end results of democracy:

“Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

Taken together, No. 10 and No. 49 remind us that public election is insufficient for enforcing the constitutional limits and obligations on government, and a dependence on public election would likely lead to disastrous results.

In No. 50 the author discusses directly the problem of controlling government. He discusses one failed model of enforcement that was tried in Pennsylvania. The politicians in that State formed a group called the Council of Censors. They tried to be their own enforcers of their state constitution, which was of course an unworkable process. He notes:

“This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy.”

In other words, he wrote, the government cannot enforce its limits and obligations on itself.

In No. 51 the author writes famously:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. “

And there it is. At the very end of the quote the author says it. The Framers required the government to be the enforcer of the limits and duties imposed on itself. That is too much like putting criminals in charge of a justice system that was meant to restrain them.

Paper No. 48 demonstrates that the Framers understood that the balance of powers is inadequate to bring about enforcement of the Constitution. No. 10 and No. 49 illustrate the Framers familiarity with the weaknesses of the public election process. No. 50 illustrates that the Framers knew that government did poorly at enforcing its limits and its obligations on itself. Then No. 51 states that even though they were aware of the “inefficacy” of having government enforce its limits and obligations on itself, they went ahead and wrote the Constitution like that anyway. These Papers illustrate that some of the Framers were quite aware of the problem of using government to keep government under control.

George Mason and others had grave concerns that the government created by the Constitution would eventually end in tyranny. To help minimize the likelihood of such a government collapse they insisted that the Constitution provide a citizen’s process to amend the Constitution in the event that the Federal government could not or would not make necessary changes to the form of government. The delegates at the Grand Convention recognized the virtue in Mason’s proposal and not only did they vote to include the citizen’s process for amending the Constitution, but they emphasized its importance by voting approval of the measure unanimously.

Without the people’s process for amending the Constitution, it would be a tyrannical constitution, not a liberal constitution because it would deny the people the ability to exercise their ability to modify their contract for government at will.

As a practical matter, reasonable people will not support a proposed amendment if its character is vague and its processes are not apparent and secured, preferably by law, which implies penalties for non-performance of duties. If the prescribed amendment convention were not permitted, the US would be in a state of constitutional tyranny.

The open amendment convention in which the convention can consider any and all proposals is permitted by Article V, but as a practical matter it will likely never enjoy the popular support of the people. In times of abusive government, reasonable people will not allow their Constitution freely and easily. The open convention would probably be worse than the prodigal committee, which, when tasked with creating a horse, created a camel instead. For government to be completely corrupt the dominant political parties must be colluding to corrupt the government, in which case the corruption can easily reach to the State legislatures, so the convention process would likely be corrupted as well. The American people are not fools. We are predisposed to avoid the open convention because we see very little good coming from it. In better times the people would have very little reason to hold an amendment convention, and Congress would probably jump at the opportunity to put positive change into place.

4. By establishing a rule about what is bribery of a public official, this document begins to set the stage for the most important problem of campaign reform at all levels of government by defining bribery of a public official as donating capital to a candidate with the donator’s identity known. Under this definition we are still free to express our opinions and to donate money to candidates as we wish. We just remove from ourselves the freedom to bribe public officials. The difficulty here is the problem of slanted journalism that supports one candidate. Can that be considered a campaign donation? Slanted journalism would be excessively hard to police, so perhaps it should be accepted as non-contributions.

5. This application can be placed in a legal wrapper and put through the States’ proper processes for making laws. Through this mechanism the State can formally make the conditions in this document law, specifically the requirements that the State legislators disapprove non-conforming proposals. The proposed amendment will have powerful effects on the freedom of the people. If not implemented correctly, the amendment will have the most serious of negative consequences, so the requirement of imprisonment of State legislators for failing to perform their required duties in this task is not unreasonable.

If the States do not make those requirements law through the normal State process for making law, the application is still valid as an application. The State can still send the application to Congress. Congress can still make its call for Convention. The Convention can still produce its documents. Congress can still elect the ratification method. The State legislatures or conventions can still vote to approve or disapprove the proposal. The procedures and requirements in Article V for making an amendment will have been fulfilled. The end product will be an amendment. However, because the Amendment Convention is of, by and for the people of the State, the State legislature will be in contempt of the citizens of the State. This is a matter internal to each State.

6. This application is written with awareness that it if put into operation, it will become a model for future applications. While the current Federal and State governments may not be so corrupt today as to necessitate such extreme actions as requiring State legislators to legally bind themselves to imprisonment for not voting a certain way on a certain issue in the future, a future application may have to address more severe conditions. So the final form of this application should be constructed so that the principles in it can apply to the more severe conditions. This way, if a time with more severe circumstance occurs, the people may refer to the precedents set in this first application as procedures for creating their application.

7. One of the primary concerns of a Convention is the creation of useful amendments.  One of the tasks of the pre-convention is ensuring that corrective amendment proposals are produced by the Convention.  Many suggested applications today are reactionary and poorly thought out.  The Line Item Veto, the Balanced Budget, and Term Limits are three common examples of bad amendments.

The Line Item Veto is an attempt to fix a problem of out of control government by giving the Head of government more power.  It gives the President greater power over the legislative process.  This is the path that leads to people like Adolf Hitler rising to power.  This is throwing gasoline on a fire.  Changing the balance of powers is dangerous and the consequences should be thought through carefully.  The proposed amendment should be corrective in character and address the source of the problem directly.  Congress puts collections of laws into single documents and then put the words “This is a bill” on it.  The President, given authority to veto bills and accountability for doing so, does not veto the laws in the document because they are collected together under the heading of “bill.”  He vetoes either the whole collection of proposed laws, or none of them.  Through this process Congress, perhaps colluding with the President, puts bad and undesired laws into operation.  This is a way to avoid accountability, which is entirely inappropriate.  The people have a right to accountability of their representatives.  The fix to the problem is in recognizing that the individual laws in the document are the real bills, and that the President is accountable for each of those bills individually when choosing to not veto them.

The Balanced Budget is similarly an attempt to fix a problem of out of control government by limiting a useful power of government to limit an abuse of government. This is throwing the baby out with the bath water.  Sometimes we need debt, such as times of national emergency.  Sometimes debt is beneficial; the Louisiana Purchase was made with borrowed money. The quick fix does not address the core problem, which is the lack of fiscal control on Congress. The control of finances is a necessary part of government. When Congress spends irresponsibly, it is abusing the right of the people to have a fiscally responsible government, and Congress is abusing the Constitution by not enacting necessary and proper laws.  The problem is the problem of lack of effective oversight of Congress, not the lack of constitutional rules micromanaging spending.

The Term Limits proposal attempts to limit the number of terms a member of Congress may serve.  This proposal equates time spent in Congress with abusive character.  It claims that spending time in Congress as a representative causes those representatives to become corrupt.  It denies the right of the citizens to elect representatives of their own choosing.  It does not address the causes of corruption, those causes being found in the structures of the system of government.  It denies the fact that many representatives having served in Congress for years, sometimes decades, do not become corrupt in character.

Those three examples of reactionary and poorly thought out proposals illustrate the need to have a process of amendment that requires a great deal of thought on the proposed applications. If the process is not sophisticated enough, reactionary and poorly conceived proposals will destroy the healthy parts of the Constitution, amending them with endless tweaks that accelerate the erosion of healthy constitutional government.  The process of amendment must ensure that proposals are put forth that address the causes of governmental problems, not just the symptoms of those causes.

The proposed amendment must also be consider in light of constitutionality vs legality.  Is the proposed amendment an attempt at abusing the Convention process to make laws?  The Convention has no authority to make laws.  It only has authority to modify the structure (the constitution) of the Federal government.  Only Congress can make laws.  Laws govern the citizens, the States and the Federal government.  The Constitution defines the Federal government and to a lesser degree the State governments, and it defines the relationship between the people, the States and the Federal government.  Any proposed amendment that is legalistic in character is not a valid amendment.  The Prohibition amendment is an example of an invalid amendment.

8. For this application, the Convention has to do some work figuring out issues other than the wording of the amendment. The Convention has to define how the amendment is to be put into operation. The Convention has to create a contract defining the new office, basically a lesser constitution. The analysis of both tasks may affect the final wording of the amendment, so the wording of the amendment should be worked on while the other tasks are worked on.

If the States proposed a pre-worded amendment with a fixed outcome for the Convention, there would be little practical purpose in holding the Convention. It would reduce the Convention’s proposal to a symbolic clerical action. While that could be in keeping with the writing of Article V technically, since Article V only requires a Convention to propose the amendment, not to create it, the reduction of role of the Convention would probably be contrary to the intents of the Framers. For this application, it is assumed that the States will select specialists for the Convention to work on the drafting and the implementation designs, and that all vested parties, Federal, State and citizen will be comforted by the fact that the integrity of Article V has not been weakened. The rule of law stands firm. The Constitution has been upheld.

9. The delegates for the State convention must be selected before the national Convention can begin its proceedings. This is necessary to prevent the action of selecting delegates from becoming a public referendum on the proposed amendment. The reason for having a convention is to exercise the republican principle of bringing experts together to make decisions instead of having the majority of voters make decisions. The democratic principle would be to vote on ratification based on popular election, which would be similar to designing the technical architectural details of a bridge based on public vote instead of the special knowledge of trained engineers and architects. If the delegates are selected after the proposal takes form, the selection of State convention delegates will be more of a democratic public vote on the proposal and less of a republican selection of qualified candidates.

10. This application creates a semi-open Convention through the use of a guarantee by the the State legislatures that they will only ratify a proposed amendment if it meets certain clearly spelled out criteria. Only one quarter plus one of the States need to make this guarantee for the guarantee to be in effect. If Congress were to choose the State conventions to vote on ratification, and the State conventions have not made a guarantee to support only the terms of the application, the Convention will be an open Convention through the State conventions, not through the State legislatures.

A variation of this application can produce a limited and prescribed Convention. This can be done if the State conventions make credible guarantees that they will approve the proposed amendment only if it meets the requirements in the application. As with the guarantee of the State legislatures, this guarantee only needs to be made by the State conventions in one quarter plus one of the State conventions.

Of course, if one quarter plus one of the State legislatures did not make the guarantee, but one quarter plus one of the State conventions did, the Convention would also be a semi-open Convention, open through the State legislatures. If neither group were to make the guarantee, the Convention would be fully open.

11. This application creates a wall of separation between the parties in the Convention process. The separation creates a much needed system of balance of powers for the Convention process. The pre-convention must consider this when drafting the application.

Article V establishes four distinct parties for the Convention:

The State legislatures, to apply and possibly vote on ratification.
The Federal legislature, to call the Convention and choose the method of ratification election.
The national Convention, to propose amendments.
The State conventions, to possibly vote on ratification.

Each party is distinct and separate from the others. The national Convention is not controlled by the State or Federal legislatures, or the State conventions, otherwise it would not be distinct. It would be an extension of the legislature or conventions. Likewise the State conventions must not be controlled by the legislatures, or the national Convention. If one of the four parties were able to influence another, the parties would not be distinct. That would defeat any purpose in having distinct parties. The parties form a balance of powers, for the same reason the three branches in the Constitution. Therefore, each of the four parties must be as free as possible from the influence of the others. Legislator may not serve or otherwise be directly involved in the conventions. Other officials from the State and Federal governments are poorly suited for the conventions for the same reasons.

Each of the parties provides some degree of checking on the Convention process. The State legislatures ensure that a Convention is necessary and lays the initial groundwork for its beginnings. Congress ensures that the appropriate number of States have made a credible application. The Convention drafts the documents and does the necessary research, design and planning. It attempts to ensure that the product desired by the State legislatures is produced. Congress ensures that the Convention has produced the proposed amendment or amendments and that reasonable and proper process was used. Congress then selects either the State convention or the State legislature to decide on ratification. If Congress believes anything is amiss in the State legislatures or conventions, Congress can choose the more credible of the two methods. The ratifying authority verifies that the desired documents are produced, and sends them to Congress for amendment of the Constitution. Congress verifies that the ratifying authority used reasonable and proper process and that the required number of authorities approved the amendment.

The pre-convention must lay out the details of the process so that each of the parties is aware of its role, and that the process is credible.

12. Another good amendment, would be an amendment to allow ratification to have an approve-reject property.  States would be required to ratify or reject  proposed amendments.  Once the State rejected, the State could not later vote to ratify the amendment.  A time limit would have to be applied to the proposed amendment.  If a State does not ratify an amendment within the time limit, the State is considered to have rejected the amendment.  This would solve a key problem in the amendment process.

13. This application appeals directly to the highest authority found in the God given rights of the good people of the United States of America, and the principles of “the Laws of Nature and of Nature’s God,” and to the wise and beneficial processes described in Article V of the US Constitution.

“Bad principles in a Govt. tho slow are sure in their operation and will gradually destroy it.”
– James Madison’s notes on the debates in the Grand Convention. June 18, 1787

“The Constitution of any government which cannot be regularly amended when its defects are experienced, reduces the people to this dilemma–they must either submit to its oppressions, or bring about amendments, more or less, by a civil war.  Happy this, the country we live in!  The Constitution before us, if it be adopted, can be altered with as much regularity, and as little confusion, as any Assembly; not indeed, quite so easily, which would be extremely impolitic; but it is a most happy circumstance, that there is a remedy in the system itself for its own fallibility, so that alterations can without difficulty be made, agreeable to the  general sense of the people.”

– James Iredell, North Carolina Ratifying Convention, 1787

——————- DRAFT 4 —————— WORKING COPY ——————

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16 Comments

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16 responses to “A Limited Convention to Amend the US Constitution: Fourth draft

  1. In this draft I shifted from a semiprescribed Convention to a limited Convention. The difference between this draft and the previous draft is subtle. The guarantee by the State convention must be implied, not directed because a directed guarantee is inappropriate.

  2. My comment in “Herald Poll: The Constitution’s well-kept secret”

    http://www.heraldextra.com/news/opinion/editorial/herald-poll-the-constitution-s-well-kept-secret/article_860c99d0-78e1-5b16-8c80-478bf9b35cbb.html

    Article V is working just fine with respect to keeping bad amendments out of the Constitution. Amendments for the Line Item Veto, the Balanced Budget, Term Limits, etc. are not made part of the Constitution because they are genuinely bad ideas, and because they are bad ideas the States won’t support them. This Line Item Veto give the President way too much power in the crafting of legislation. It’s the kind of amendment Hitler would have loved. A more reasonable amendment would be to give the President power to veto the distinct laws contained within bills. One of the reasons for forming a Federal government was to enjoy the benefits of national credit. We need credit in times of emergency. We made the Louisiana Purchase on credit. The problem with the budget problems is that no person or group is holding the Federal government accountable for violating the rights of the citizens by running up obscene debts. The Balanced Budget proposals throw the baby out with the bath water. A better amendment would set up better accountability for government financial excesses. Likewise, Term Limits throw the baby out with the bath water and does not address the cause of Congressional excesses. A better amendment would address the system of bribery that takes the form of “campaign donations.”

    Two things need to happen before an Article V convention can be held. First, a credible and necessary change to the structure of government needs to be addressed. Most of the popular proposals I see floating around the Internet today are like the ones I addressed above. Article V filters those out, thank God.

    Second, the process itself needs to be defined by some kind of pre-convention held by the citizens of the States. The State legislators will not act unless they have popular public support. The public will not support a process that will have profound effects on their lives if they do not feel confident that they understand what that process is and what it will do. So an open convention is politically unrealistic. A limited convention, one in which the Convention members give a guarantee that they will only implement a given change, or one in which both the State legislatures and the State ratifying conventions give a guarantee that they will only ratify an amendment that implements a given change, is the only kind of convention the people will support. The pre-convention must clarify all of the processes involved in the amendment process.

    After we have a credible correction to the imbalance in the powers of government, and after we have credible process defined, we can fix our government.

    I would suggest fixing the imbalance by removing the Supreme Court from machinations of the Federal government and making it an office elected directly by the people. Congress and the President tend to appoint justices who will not curb the abuses of their offices, and what we need more than anything else are better curbs on the abuses of the Federal government. I would set up a court modeled more after South Korea’s Constitutional Court with a Court President elected directly by the citizens. The Court President would appoint the justices. The Constitutional Court would have the power to impeach all elected Federal officers and their appointees. It would have the the power to annul existing laws.

    But whatever good amendments get proposed, the process of amending the Constitution through an Article V convention must be spelled out in detail beforehand, otherwise it will not happen.

  3. My comment in foavc.org: Notes on the sample application: High level overview

    http://www.foa5c.org/mod/forum/view.php?id=4

    I’m going to start breaking down my sample application. It has a lot of detail and a lot of nuances in it. First, the highest level concepts.

    The main assumption of the Amendment Convention is that the form of the Federal government needs to change, and Congress is unwilling to make that change. The Convention assumes that the Federal government is abusing its powers, and it is unable to curb its abuse. By abuse I mean it is using powers that are not permitted to it, or it is not using powers required of it.

    In theory, the States could apply for a Convention to create a positive change that has nothing to do with abusive Federal government, but that would never happen. Congress would jump at the opportunity to make those kinds of changes. As a political reality, the only reason the States would apply for a Convention is to address an abusive Federal government.

    The initial assumption is that the Federal government is abusive, and that the Constitution must be modified to make necessary changes to the structure of the Federal government. This has some important implications.

    First, the States cannot assume reasonableness or propriety from the Federal government. If two-thirds of the States send a common application to Congress which meets the terms of Article V, the States cannot assume that Congress will act appropriately and call the Convention. Similarly, the States cannot assume that Congress will act appropriately after the Convention sends its proposal to Congress and will select one of the two methods of ratification. The States must address Congresses recalcitrance before the application is sent. In my example application the States declare that if Congress does not call a Convention after receiving the application, the States would give notice to Congress that the States considered the Convention called anyway, and the would proceed as if Congress had called the Convention. In the event that Congress did not select a ratification method after the Convention proposed a proper amendment, the States would exercise both methods to ensure that the amendment is properly ratified.

    A main point here is that all of this needs to be spelled out before the process starts, otherwise chaos would happen. An abusive Congress could take advantage of that chaos and prevent the State from curbing its abuses.

    Second, the Convention process assumes that the Constitution is flawed in some way and needs correction, therefore any part of it is not necessarily authoritative. The main difficulty in this is that the Article V Convention process is part of the Constitution, so it could be flawed and not authoritative. Therefore, the writing of Article V is not so much law as suggestion. Does that mean the States and Congress can do what they want with respect to the Amending the Constitution? Certainly not. Peaceful society needs the stability of the rule of law. The terms of Article V should be followed to as great a degree as possible.

    Because the Federal government is assumed to be abusive, it is not authoritative in setting the terms of the Convention process. What are the States addressing? An abusive out-of-control Court. An abusive out-of-control Congress. An abusive out-of-control Executive. These are the organizations being brought to account. They cannot set the terms of the Convention process. That would be like having the criminals set the terms of the justice system. That would be like having criminals writing and interpreting the laws. That is not justice. That is a travesty. The authority of the Convention process lies with the States, not the Federal government. If a Federal official said something about the Convention process, that official’s words have no authority. The Federal government does not determine whether two-thirds of the States have made a proper application. The States do. The Federal government calls the Convention, but that call is only an acknowledgement that the products of that Convention may become part of the Constitution. The Federal government does not determine whether three-fourths of the States have ratified the amendment. The States do.

    That is the source of a lot of confusion. Many people assume that the Federal government has a role in determining whether the Convention process was called properly, held properly, and ratified properly. It does not. The only authority the Federal government has is with its own internal processes, and except for that, the propriety of the Convention process is determined solely by the States, not the Federal government. That is the process designed by the Framers.

    The Federal government exists for the States, not the States for the Federal government. The Constitution belongs to the States and their citizens, not the Federal Court, the Federal Legislature, or the Federal Executive.

  4. My comment in foavc.org: Notes on the sample application: The Four Parties and the limited convention

    http://www.foa5c.org/mod/forum/view.php?id=4
    Article V defines four bodies involved in the Convention process: The State legislatures. Congress. The Convention. And the State ratifying conventions.

    It implies two other bodies: The public. And a pre-convention.

    Each of these bodies is separate and distinct and free of influence from the others. If one body were not completely separate from another, it would be an extension of the other. If Congress has the ability to control the Convention, the Convention is not distinct from Congress. It may as well be a part of Congress.

    For the reason of separation of the four bodies, one body cannot direct or otherwise influence another. Congress cannot define the terms or procedures for the Convention, the State legislatures, or the State ratifying conventions. Likewise the Convention, State legislatures, and State ratifying conventions cannot define terms or procedures for Congress. The State legislatures cannot create or define the procedures for the State ratifying conventions. If a legislature could do so, it could influence the outcome of the ratifying convention. That would defeat the purposes of having a separate body.

    None of the four bodies may appoint members of the other bodies. By doing so, they would be able to influence the outcome of that body. That would defeat the purposes of having separate bodies.

    Each of the bodies must be kept as separate as possible from the influence of the other three, otherwise the purpose in having separate bodies is defeated. To keep the Convention process as proper as possible, each of the four bodies must be kept as separate as possible from the others.

    Each body may produce its own set of rules for its role. None of the bodies may produce rules for the other bodies. None of the bodies may set conditions on the other bodies for its interactions with the other bodies. For example, Congress cannot require that the Convention produce proposed amendments in a specific printed format such as formal legal format. A proposal produced by the Convention which the Convention believes to be a proposal is a proper and valid proposal.

    The membership of each body must be appointed by someone other than the other bodies. The legislators are appointed by their popular election. The legislators cannot appoint the delegates for the conventions. The other groups of persons who might appoint convention members are the heads of state, judges, and the public.

    Heads of state, the Governors and the President, are poorly suited to the task. For all practical sakes and purposes, in the US the political parties are the government. The Democrats and Republicans run the government and they have a great deal of influence on persons who have run for partisan office. As the government is corrupt, the parties are corrupt. Since most or all Governors and the President come from the partisan political system, they are easily influenced by the corruption of the parties. Therefore, they are poorly suited to the task.

    Judges appointed by partisan politicians are poorly suited for a similar reason as the heads of state. They can be easily selected to the bench because they are of a mindset that they will not reproach an abusive government.

    That leaves the public. Popular election of candidates as delegates would give the most objective delegates. A popular election of delegates would also help create much needed buy-in from the public.

    The proper way to select delegates for the Amendment Convention and the ratifying conventions is by popular election of non-partisan candidates. The legislators or heads of state would be necessary for setting up the elections, but they cannot set the terms for the election of delegates.

    The Convention process requires a lot of set up beforehand. A pre-convention is necessary to set up the Convention’s processes and the conditions. To prevent undue influence by the partisan politicians, this pre-convention also requires an election of non-partisan candidates similar to the election of delegates to the main conventions.

    The processes and terms set up by the pre-convention must be specific enough that the general process is credible and rigorous enough to be supported by the public. The pre-convention may not not define the internal processes of the four bodies. The pre-convention sets up the work flow between the four bodies. If the Convention is to be a limited convention, the pre-convention may set the requirements of the proposed amendments.

    A limited convention can take one of three forms. In a Conventionally limited convention the delegates to the Amendment Convention give a guarantee of some sort that they will only propose amendments that meet a predefined set of conditions. Probably, the delegates would state their position on what they would support before the election. The public would consider whether to send guaranteed or non-guaranteed delegates. If a strong majority of delegates are guaranteed to a common set of conditions, the Convention is Limited by Convention.

    If the State legislatures and the ratifying conventions give a similar guarantee that they will only ratify proposed amendments from the Convention that meet a common set of conditions, the Convention will be Limited by Ratification. The State legislatures might be able to bind themselves by law to only ratify the proposed amendments that meet the common set of conditions. If the practical ability of the States to have an Amendment Convention depends on the State legislature’s ability to bind themselves by law to only ratify the prescribed amendment, then the action is necessary, legal and proper. Where the Conventionally limited convention requires a strong majority of delegates to produce a guarantee, the Ratification limited convention requires one-fourth plus one of each ratifying body to give a guarantee–one-fourth plus one is enough to prevent ratification of proposed amendments.

    If both the Amendment Convention and the States give a guarantee then the Convention is double limited. Such a Convention is highly unlikely to produce anything other than the desired amendments.

    The pre-convention is as important to the process as the other four bodies.

  5. scott97007

    My comments in foavc.org forum
    http://www.foa5c.org/mod/forum/view.php?f=1
    “Notes on the sample application: The Election of Delegates”

    As I previously discussed, the State legislatures cannot choose the delegates for the Amendment Convention. If they could, they would effectively destroy the purpose in having the Amendment Convention. The States might as well propose amendments themselves. Likewise with the ratification convention.

    Congress cannot select the delegates for the same reasons. To do so would be to violate the purpose in having separate parties.

    The citizens must choose the delegates by popular election. So the question of this discussion is what is involved in electing delegates for the three conventions: The preconvention, the Amendment Convention, and the State ratification conventions.

    First, what must the criteria be for candidates? The most important, no doubt, is that delegates must be as politically non-partisan as possible.

    Political partisanship is a problem in the Convention process. Partisanship in the US is a necessary evil. Partisanship without challenge leads to bloodthirsty dictatorships. In communist countries where only one party is allowed to exist, the party takes control to the point of committing mass murder and getting away with it. Multi-partisanship creates a check on the parties. It keeps them from getting too out of control. Political parties cannot be avoided in a democratic nation, but we can appreciate the positive value that they bring by helping prevent the horrors of totalitarianism.

    That’s the good side of parties. Now for the bad.

    It can safely be assumed that political partisans will try to destroy the objectivity of the Convention process. The partisans will insist on the injection of party politics, only their own, not the other party’s. They will lie and manipulate to get their insiders into the convention. They will appeal to passion, not reason to attempt to sway the public. They will cheat. They will twist arms. They will blackmail. They will threaten. They will appeal to fear, uncertainty and doubt. If they can get away with it, they will break laws to manipulate the Convention. In the partisan leaders’ madness for power, they will rationalize any kind of immoral and irrational actions to sway the Convention in favor of their political agenta. That is the continually demonstrated character of partisans.

    The Convention is an act of, by and for the people, not of, by and for the partisans. It is not an act of the Federal government. In America’s system of government, the parties are an extension of the government. Just as mutualistic parasites become part of their host’s environment, such as the pilot fish who cleans the teeth of the shark without being eaten, so are the political parties part of the governmental environment. Together they form a whole. The parties are in effect part of the government.

    Therefore, to help ensure that the process is drive by the reasonableness of the people, not the corrupting machinations of the partisans, as much separation as possible must be created between the partisan parties and the conventions. The delegates must be nonpartisans.

    They must be as free as reasonably possible from party affiliations. They must never have run for office as a partisan candidate. Having once run for office, they will have incurred political debt, which may affect the objectivity of their work.

    Some have argued that partisans should be allowed to participate as delegates. Their arguments are generally theme and variation on allowing partisan into the convention because their knowledge and experience would be advantageous to the convention. That argument is moot. It can be safely assumed that the delegates would not be sequestered. They would be in communication with persons outside the conventions. They would discuss the progress of the convention with legislators. They would consult experts on specific subjects when expert knowledge is desired. Keeping partisans out of the convention does not keep their knowledge and experience out of the convention. It only minimizes the effects of their negative machinations and their frequently unreasonable, passion-driven agendas.

    The most desirable delegates would be persons who knew how to reach subject matter experts and communicate with them.

    The preconvention is where the details of the elections for the Amendment Convention and the ratification conventions should be worked out. So the first question is how the preconvention election is held.

    If the State legislatures agree to begin the Article V Convention process, they must first hold public elections for delegates for the preconvention. They must publicly request candidacies be filled. The first act of the preconvention must be to vet the delegates and as a rule remove delegates with partisan histories. The State legislatures should vet their candidates to prevent the delays and conflicts that will result from sending partisans to the preconvention.

    To begin the Amendment Convention process, the first hurdle is for the State legislatures to agree that specific changes to the structure of the Federal government are needed. The second hurdle is creating a credible initial design of the actual steps and rules of the Convention process, which is what we are doing in these writings, and what other folks are doing in similar writings (such as those from Natelson, which, while well intentioned, are deeply flawed in their rationale and design). It is assumed that the members of the State legislatures would lend their expertise and take the initial designs and modify them as needed, until two-thirds, or better yet three-fourths of the State legislatures agree on a common plan. As part of that plan, the State legislatures absolutely must agree that only nonpartisans should serve as delegates to the three conventions, especially the first one. If they do not, America would be well advised to terminate on the Convention. If the partisans are given the ability to modify the Constitution they will turn the Convention process into a train wreck; they will weaken the American form of government to gain power; and they will fight to prevent effective government reform.

    The mechanics of the election for the preconvention should be straightforward. The States publicize the requirements for candidates. They must have no history of running for partisan office. They must submit an application of no specific form to a certain election office with a limited length by a given date, which would be put into the State’s annual voter’s pamphlet. At election time, the citizens vote for one candidate. The top two vote recipients are the candidates. The third and fourth are the seconds for the top two.

    By selecting the top two candidates, political partisanship is balanced. One would mostly likely receive more support from the political left and the other from the political right, not through any formal structuring, but just as a matter of election mathematics.

    If all 50 States send two candidates, the preconvention would have 100 members. If each State sent four candidates, there would be 200 delegates, which is way too many for a convention. Even 100 is a lot, but that number would enjoy popular political support because it is pretty much guaranteed to be politically balanced.

    After three-fourths of the States agreed to send delegates the other unsupporting States undoubtedly would send delegates too because they would want to have a voice in the Convention process.

    The State legislature could vet the top four vote recipients and negate the candidacy of any unqualified candidates before or after the election. The legislature would have to do more work if if it vetted candidates before their applications are put into the pamphlet because every candidate would have to be vetted, but the desire of the people would be better reflected in the election if one of the top four vote recipients were invalidated.

    A similar election would probably be held for the election of delegates to the Amendment Convention and the ratification conventions. Those candidates are within their rights to put into their applications a statement that they would only work on and support amendments for specific purposes. Through those statements the Convention could become a limited and prescribed Convention.

  6. scott97007

    My comments in foavc.org forum
    http://www.foa5c.org/mod/forum/view.php?f=1
    “Notes on the sample application: The Preconvention”

    The preconvention is not mentioned in Article V of the Constitution, but it must be a part of the Convention process. James Madison commented on a key problem of the Convention

    “Mr. MADISON did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a call a Convention on the like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum &c. which in Constitutional regulations ought to be as much as possible avoided.”
    – James Madison, Notes of Debates in the Federal Convention of 1787, Saturday, September 15

    The problem Madison mentioned is that “difficulties might arise as to the form, the quorum &c.” The purpose of the preconvention is to work out those details before the process begins. Each change in the Federal government requires a unique process. Perhaps that is why Madison believed that “regulations ought to be as much as possible avoided.” Each potential amendment requires special handling. Let’s look at a couple of examples to see why.

    First, consider the change considered in the sample application. It splits the Supreme Court in two, and removes the court that adjudicates the terms on the Federal government from the domain of the Federal government and subjugates it to the citizens directly instead. That is a major change in the form of government. The Amendment Convention has to design the changes to the Federal Constitution, draft a separate constitution for the new court, consider potential ramifications of the proposed changes, and develop a plan for putting the changes in place. That is a huge amount of work that could take years to accomplish.

    Next consider a simple amendment such as one giving the President the power to veto individual laws within a bill. That is a simple change. The States could easily agree on the wording of the amendment, and give that to the Amendment Convention to basically review, rubber stamp, and offially propose to Congress per the terms of Article V. A minimal amount of work is needed for this kind of amendment.

    One of the tasks of the preconvention is to work out beforehand how the process should take place and make some credible plans so the everyone involved can have some idea of what to expect. What if the Convention delegates expected to spend a few weeks working on the amendment, and instead the convention took a year? What would happen to their family life? Their regular jobs? People have to be able to plan ahead.

    This brings up an important another reason why an open Convention is a bad idea. Each potential amendment may need a different Convention process.

    Another task for the preconvention is the consideration of potential changes in the Federal government. Some potential amendments would be useful, some would be useless, and some harmful. Consider the Line Item Veto and the Law Item Veto. The Line Item Veto would give the President power to directly manipulate legislation. It erases some of the balance of powers. It gives the President more power at the expense of the Legislature. It is exactly the kind of change in power that someone like Adolf Hitler would want. Some would argue that many State Governors have this power and it seems to work for those States. But what are the economic and social conditions of those States? The States are overseen to some degree by the Federal government. The Federal government can and sometimes does step in and reproach State governments when they overreach. What empowered body oversees the Federal government? The Line Item Veto is a bad idea.

    The Law Item Veto on the other hand could provide much needed accountability. The people have a right to have accountable government. When bad laws can be passed by mixing them with good laws in a single bill there is little accountability. That mixing of laws in a bill is an instrument of abuse. It is a way of avoiding accountability. It is a violation of the rights of the people.

    The difference between the two potential amendments is that one is a destruction of the rights of the people, and the other is a repair. But the Line Item Veto has popular support. Even though it is reactionary and poorly thought out, it is easy to understand. The Law Item Veto is more complex. It is harder for people to understand.

    As an application of the principle of the republican form of government, the preconvention must be tasked with the thoughtful consideration of potential amendments. It must consider the viability of the change. It must consider what would change in the rights of the people. What are the ramifications of the change? In the case of the Law Item Veto, we can see that it does not change anything. It is useless. The principle of accountability is already in the Constitution through the Ninth Amendment which already protects the rights of the people. These are the kinds of things the preconvention must consider.

    Some people want an open Convention so that any and all potential changes can be considered. The preconvention is the proper venue for this. It creates an environment where various changes in our form of government can be considered with little threat of having bad amendments forced upon the people. Unlike the proposals of the Amendment Convention, the proposed changes of the preconvention are not required to be considered as proposed amendments. When the Amendment Convention produces a proposed amendment Congress and the States are required by Article V to act on it. The works of the preconvention are suggestions not directives. They provide the people with greater ability to consider various changes in government with less potential for harm than is built into the Amendment Convention. It gives the people a chance to stop and debate and consider if we really want to make the proposed change in the Federal government.

    The preconvention would prepare a group of people to verify the correctness of the proposed amendment if it came to pass, and to help create the proposed amendment and its associated works. If the works of the preconvention lead to an Amendment Convention the delegates would make excellent candidates to head the State ratification conventions, being most intimate with the details of the proposed changes. Preconvention delegates might make excellent delegates for the Amendment Convention for the same reason, but there is a slight issue with this. Experience with complex system design demonstrates that the people requesting a new system or a system change serve better as verifiers of the work than as the engineers of those changes. Two different mindsets are needed. The requester is someone who understands the needs and operations of a system. The engineer is someone who understands the technical nuances of the system. The requesters in the preconvention should be made up of everyday people such as business owners, health professionals, farmers, and other folks who are close the pulse of the everyday people, while the “engineers” in the Amendment Convention should have more of a background in law and have practical familiarity with the operations of government. If the requesters in the preconvention all became “engineer” delegates in the Amendment Convention, none would be suited to act as verifiers of the products of the Amendment Convention. As a basic principle of system design, the engineers should not be the verifiers.

    While it would be difficult to create rules to separate the requesters from the “engineers” and prevent persons from being in one convention and not the other, the people applying to be delegates can self select and voluntarily choose to be in one convention or the other. Likewise, informed voters can elect delegates based on their suitability to the tasks at hand.

  7. My comments in foavc.org forum
    http://www.foa5c.org/mod/forum/discuss.php?d=350
    “Notes on the sample application: The State Legislatures”

    One problem the States have in amending the Constitution is the problem of geography. The State legislatures are disperse geographically. Congress on the other hand is centralized; everything happens in one place. That makes it easier for Congress to organize to change the form of the Federal government. That is a primary reason why Congress, not the States, have been amending the Constitution.

    The amount of effort required by the States to put together an Application is a multiple of the amount of effort required by Congress. Greater coordination is necessary. The first time, perhaps every time, it is attempted, a new process must be created, where Congress has an established process. Where Congress is free to propose amendements for any purpose, the Amendment Convention’s only practical purpose is to bring the Federal government under control. It is an instrument for the people through their States to confront and correct the Federal government. The Preconvention is necessary for directing and coordinating those efforts.

    Another problem the States have is partisanship. The parties divide the nation into the political left and right with the number of partisan on each side being roughly equal. The partisans in one party gain power by arguing for something. The partisans in the other party gain power by arguing against. While partisan debate in the decision making process is necessary for a free society, partisanship in a creative process is destructive. Creativity requires openness. Deciding requires the ability to close off.

    If partisans try to drive the creative processes, the Convention process is substantially weakened, if not guaranteed to fail. Instead of leaving a legacy of success, the partisan creative process leaves a legacy of failure. To have success, the partisans must stand aside and let nonpartisans create, and afterwards the partisans must debate and decide. The creative drive must come from the nonpartisans.

    Some members in each party might believe that it is being weakened by not being part of the Preconvention. Really, only the party that is the most power hungry, abusive and manipulative would gain from having a partisan Preconvention. With a nonpartisan Preconvention the more just and noble party will gain the advantage because their opponent party will be kept out of the Preconvention.

    The delegates to the Preconvention must be as separate as possible from the machinations of the party politics found in the State legislatures. When the State legislatures agree to create the Preconvention, they must start with the requirement that the delegates be persons who have not run for partisan office.

    The partisan debates should happen after the Preconvention, not during it.

    For those reasons, if even one State chose to send delegates from the State legislature, the Preconvention would be out of order. The partisans in the State legislatures are too close to the partisans in the Federal government. They are too close to the problem. The Preconvention is simlar to a war planning committee. Sending partisans as attendees is like sending spies from the enemy camp into the war planning committee. That is highly inappropriate. Each State sending delegates to the Preconvention must do so only on the condition that none of the other States’ delegates be past or current partisan politicians.

    The first task of the Preconvention must be the vetting the delegates and the segregation of the ingenuous partisans. This first task must be stated as an action of the Preconvention before the selection of delegates, that way the legislatures will be aware that their delegates will be removed from the creative process of the Preconvention if they are found to have run for partisan office. Ingenuous delegates should not be removed from the Preconvention, because the States must be free to send who they want to the Preconvention. The Preconvention will establish its own rules of order. It may choose to segregate disruptive influences from its processes. Partisans are disruptive to the creative processes, so they must be segregated.

    Another problem the legislatures face is the problem of having a clear issue. The need for the change must be clear to the public. It must be clear that Congress is the inappropriate source of that change. It must be clear to the public that the change is necessary and proper.

    A lot of proposed amendments can be found floating around in public discussions. Most of them are bad. Our first clue that they are generally bad is the fact that the public does not embrace them. They are easy to grasp and sound good at first, but they are reactionary and poorly thought out. The Line Item Veto is a good example of a monsterous change that was analyzed more deeply in a previous article in this series. Until the need for a specific positive change arises that can withstand the scrutiny of the public, there will be no effective movement to change the Federal government.

    Many proponents of amendments do not understand that. They grasp an idea, and it sounds good to them at first, but a deeper analysis shows that their idea is deeply flawed. For that reason the general public will not support it. Nothing becomes of it. The proponents get frustrated because they will not hear the arguments against. They become partisan and begin trying alternative means to create the unwise change. Some try to get Congress to amend the Constitution to make it easier for the States to begin the Amendment Convention process, so they can put their bad amendments into the Constitution. Some recent recommendations try to lower the required number of States necessary to apply for the Convention to make it easier for changes such as the Line Item Veto to be put into the Constitution. Some attempt to have the Courts intentionally misinterpret the Constitution. The problem those people are facing is not that the Constitution is overly robust in preventing unwise amendments. Their problem is that the Consitution is working as intended, and they are having problems accepting that fact. Their problem is found in their analysis of their advocated changes, not in the Article V process.

    After the State legislatures have a credible change that is embraced by the public, each State legislature must arrange the election of Preconvention candidates and help make the arrangements.

    The members of the Preconvention should be in regular communication with the members of their State legislature for feedback on their work. Through the Preconvention the States will produce an Application and a Convention process that can be supported by two-thirds of the States, or better yet, by three-fourths. After the Preconvention hammers out the details of the process, the State legislature must decide whether to act on the recommendations from the Preconvention.

    If the Preconvention recommends a limited Convention, and it almost certainly will, the State legislatures must arrange the public election of delegates to the State Ratification Convention, and based on the outcome of that election, may choose to support an application for an Amendment Convention.

    The State legislatures may be able to guarantee their support of the proposed change in the Federal government by obligating themselves by law to only support predefined changes. Some pundits claim that a State legislature cannot do this. The pundits refer to the principle of disallowing States from binding future legislatures to be unable undo their laws. As a principle, this is absolutely correct and appropriate, but it is only correct and appropriate within the context of legislatures making State laws.

    The Article V Convention process does not exist within the context of legislatures making State laws. It exists within the Constitutional concept of protecting the people and the States from an abusive and corrupt and structurally flawed form of government.

    If the only way the public will support an Article V convention is for the State legislatures to make such a legal obligation, the legislature’s obligation is necessary and proper. The legal obligation is not an act of a legislature binding a States future State legislation regarding State affairs. It is an act of a legislature as a national entity binding the State to a path necessary for enabling the national Convention. The State legislators will be acting in a national role, not a State role. The Convention is a national action, not a State’s action. The States are bound to the Constitution. The Ninth and Tenth Amendments permit the States to do what is necessary to protect the rights of the States and their citizens by bringing about necessary change in the American form of government. Article V outlines a nonviolent process for doing so.

    If the a legal obligation by the legislature on a future legislature is necessary to activate the Convention process, it is proper. To not allow this action is to deny the Article V Convention. No governmental office has authority to invalidate a State’s legal obligation on itself in the context of the Article V Convention. If the people require the change, and the State legislature supports the change, and the people require such a legal guarantee from the State legislature before proceeding as a way of protecting their rights, the action is appropriate and binding.

    Per Article V, the Ninth Amendment, and the Tenth Amendment, any construction in the rules of the Constitution, or any interpretation of those rules by any government agent, that attempts to deny the ability of the States to implement those actions necessary to protect the rights of the States and their citizens to correct their Federal government is improper.

    The State legislatures are not required to send delegates to any of the conventions. They may not be forbidden from sending delegates, although a convention may choose to segregate delegates who do not meet standards agree to by the States as a condition of having the convention.

    The State legislatures must provide for the needs of the delegates while in convention. Delegates should not receive any gifts or compensation from any persons except their own State government. To do so would be cause for the convention to segregate that delegate. The delegates are State officials, so criminal penalties should apply.

    The State legislature may not appoint members of the State Ratification Conventions. Members of the State legislature may not be members of that body. Either of those actions may invalidate the ratification. The two bodies, the State legislature and the State Ratification Convention, must be completely separate, otherwise there is no purpose in having different ratification methods. The State Ratification Convention exists so that Congress, if it perceives that the State legislatures are acting inappropriately, may direct the ratification to a body other than the State legislatures. To help protect the people from a group of abusive State governments, as could happen in partisan politics when a majority of State legislatures are dominated by one party, Congress is empowered to direct the ratification vote to a group that is not associated with the State legislatures. The people themselves are the most sure source of that vote. As a principle of republican government, the people would elect representatives.

    To prevent partisan abuses of the process of electing ratification delegates, the delegates must not be influenced by the State legislature. The Preconvention should spell out the process for electing Ratification Convention delegates. The State legislatures must follow that process as due process. If members of the State legislature interfere with the process of electing Ratification Convention delegates, their actions must be considered criminal. The delegates to the three conventions are State officials, and interfering with the duties of those State officials is a criminal act, even for State legislators.

    If a State legislature interfered with the election of ratification delegates, the ratification cannot be invalidated, otherwise manipulative State partisans could bypass Congresses choice of the Ratification Convention method and force the negation the proposed amendment by purposefully interfering with the election of Ratification Convention delegates. Rather than negating the election, the election must be repeated until an election is held without interference. Reasonable limits should be placed on the number of repetitions of this cycle by the Preconvention.

    The State legislatures may not appoint member of the Amendment Convention. Members of the State legislature may not be members of that body either. The only proper role of the State legislature in the Amendment Convention is the role is enabling the public election of nonpartisan delegates, and the role of advising the delegates while the Convention is being held. Any other involvement is a violation of the principle of separation of powers. The Amendment Convention is intended to be a separate body from the State legislature. If inappropriately selected delegates to the Amendment Convention, the Amendment Convention is properly within its rights to segregate those delegates from the creative activities of the Convention.

  8. My comments in foavc.org forum
    http://www.foa5c.org/mod/forum/discuss.php?d=351
    “Notes on the sample application: The Application Document”

    The Application for an Amendment Convention helps protects the people and their States from claims of sedition and usurpation by a corrupt Federal government. If corrupt members of the Federal government tried to keep the people and their States from correcting a weakness in the form of government that enables their corruption, the existence of the Application process in the Constitution makes it difficult for the corrupt to claim sedition and usurpation. An Application process is necessary to have an Application. People employing an Application process are protected under Article V when discussing changes in the form of government, just as members of Congress enjoy their similar immunity.

    As discussed previously, the most sure form of Application is a single document signed by the heads of at least three-fourths of the State legislatures. An agreement by two-thirds is required by the Constitution, but because a prescribed Convention is the most likely form of Convention the applying States should seek a three-fourths sign-off to help ensure that objections by the non-signing States do not prevent the ratification of the proposed amendment.

    In general, the States, not the Federal government, determine whether the Application is valid and whether the the requirements for two-thirds sign-off are met. The Federal government is assumed to be corrupt and abusive, which makes it an inappropriate agent for determining the correctness of the Application.

    The Federal government’s calling of the Convention is less a power of the Federal government and more an acknowledgement that the people through their States are requiring a change in the form of their government. The calling represents proper and peaceful process. It tells the citizens of all nations that the United States is not being thrown into revolution, and that even though it is going through some internal changes it is still under control of the authority of the Constitution, and it is stable in its structure, and proper in its changing.

    The Application itself addresses the concerns of the people more than the concerns of the Federal government, so it should be written to the people, not the Federal government, and it should address the concerns by other nations about the stability of the US government.

    For contrast, compare the Application outlined in these articles with the example application produced by ALEC in their “Article V Handbook” found here:

    “Application under Article V of the U.S. Constitution For a Convention to Propose a Balanced Budget Amendment and Further Fiscal Restraints

    “Section 1. The legislature of the State of ______ hereby applies to Congress, under the provisions of Article V of the Constitution of the United States, for the calling of a convention of the states limited to proposing an amendment to the Constitution of the United States requiring that in the absence of a national emergency the total of all Federal appropriations made by the Congress for any fiscal year may not exceed the total of all estimated Federal revenues for that fiscal year, together with any related and appropriate fiscal restraints.”

    Compare the ALEC application to another statement for a change in government, the Declaration of Independence:

    “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.”

    [Then the list of abuses are given. The abuses are followed by a paragraph and a vow. It ends:]

    “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

    While the desire of ALEC to promote a path to the Convention is agreeable, their end product leaves much to be desired. A real Application is as much political document as a legal document. The ALEC proposal seems to have been written as a paragraph in rider in a corporate contract. Imagine if the Declaration of Independence was written with the same consideration:

    “Declaration of Independence of the Former British Colonies Under the Laws of Nature and the Laws of Nature’s God

    “Section 1. The legislature of the Colony of ______ hereby notifies to the King of Great Britain, under the commonly recognized terms of the Law of Nations, for the calling of a separation of an unhappy colony against an abusive prince, declare ourselves free and independent of said prince, and are a separate nation.”

    Where is the passion? Where are the ideals? Where is the complete commitment of mind, body and soul? Where is God appealed to? Where are the people appealed to? Where are other nations notified that our government, even though it is undergoing changes, it is still strong? The people must support the Application. This is a serious document that may have profound effects on the lives of the people who live under the Constitution, and the nations that are our neighbors. The ALEC version of an Application will never be taken seriously by the public.

    The ALEC document was written defensively. The authors wanted to reduce it down to a minimal statement to prevent States from finding reasons to not support it. They have no substantial cause; no great purpose in applying. They are irrationally trying to correct an abuse of the people in the security of the their personal wealth by denying the people’s government the ability to borrow money for such things as national defense or opportunities. War sometimes requires borrowed money. The Louisiana Purchase was made with borrowed money. While the idea of protecting the wealth of the people is appealing, the public will not support such a procrustean Amendment. The Ninth Amendment protects the people’s rights in this matter. The source of the problem of government robbing the people of their wealth is found in the lack of sufficient enforcement of the Ninth Amendment. It is a document of the partisans, by the partisans, for the partisans. In constructing their Application, ALEC did not have a ready channel for feedback from the public like this series of articles has. Who wrote it? What feedback was given? What opportunity for input did the public have?

    The Application must be an appeal to the people not a defensive legalism directed at Congress. Congress may direct the proposed amendment to the people for ratification through the Ratification Convention. The people must believe in it, otherwise the people will not ratify it. We must be moved in our hearts, minds and souls. Just as the Declaration was as much an appeal to the people in the Colonies as it was a legal statement to a corrupt government, so must the Application be an appeal to the passions and ideals of the people.

    The ALEC document has the applying States weakly submitting to the corrupt and power-mad government and begging it to be reasonable and gracious in accepting the Application. A real Application is made of the people, by the people, for the people. It reflects our values and our strength. It states who we are. It says what we are willing to fight and sacrifice for. It defines us. The purpose of the Application is to give the Federal government notice that it shall be submitting to the will of the people, not the people to the will of the Federal government. It is a bold statement, almost but not quite a declaration of war. It is not a wimpy rider snuck into the fine print in some corporate contract. It says that the Federal government has gotten out of hand, and is bringing harm to the people it is meant to serve, and that the people through their States will bring the Federal government to heel, and that complaints from the Feds in the matter will be generally disregarded.

    The States do not submit the Application to the Federal government. They submit it to the people. They also send a copy to the Federal government to give it due notice that the people may be changing it’s form in the near future. The United States government is of, by and for the people. The people, not the Federal government, are the proper authority in the matter at hand.

    The States should not submit the Application individually to the Federal government. That is just an invitation to be ignored. That gives an abusive Federal government an opportunity to deny the Application. As reader of the FOAVC forum know all too well, hundreds of Applications have been sent by States individually to the Federal government. Nothing has ever come from those. How many hundreds more must be submitted before we recognize that the process of submitting individual Applications to the Federal government is ineffective and unworkable? The process of individual Applications works out to be nothing less than partisan political puffery at the State level. The best way for partisans to kill Federal reform is to put the proposed reform into an Application and send the Application directly to the Federal government without sign-off from other States. That way they can create the appearance that they are fighting for positive change, but without doing something that will actually make that change happen.

    A single Application, signed by the heads of two-thirds, or better yet three-fourths, of the State legislatures is the proper way to Apply. Such an Application cannot be denied by the Federal government.

    The Application should also give notice to the Federal government that in the event that the Federal government does not accept the document that the States consider a proper and approved Application, the States will be required by their citizens to call the Convention themselves. That is an unlikely eventuality, but the Federal government is assumed to be corrupt and intransigent. This assertive notice makes clear to the United States citizens and the nations of the world that some of the behaviors of the Federal government may have been inappropriate. Its assertiveness lays the groundwork for any necessary apologies or reparations to the people and nations of the US and the world for the actions of the corrupt and abusive Federal government, and it implies that the people of the Federal government will be going through substantive and meaningful changes in its form to prevent future abuses.

    Do not fear that an attempt by Congress to deny the States’ Application would result in civil war. War requires funds and support. The supermajority of States would be able to defund the Federal government and to deny it necessary military and police support. The States could recall or even arrest their Congressional representatives. Civil war over this event would not happen.

    A Presidential coup would be extremely difficult, if not impossible. A President could not attempt to deny a supermajority of States their right to a proper Convention. Through their Congressional representatives, the States would promptly impeach such a President. Such a President would be unlikely to find necessary military support.

    A horribly corrupt President could appeal to anti-American foreign nations for support in defeating the supermajority of States through military action or through such actions as economic sanctions. Military action would be highly problematic for the corrupt. One can hardly imagine the citizens of the US electing a President so corrupt as to intentionally invite war against the United States. To the contrary, if a supermajority of States required a Convention, the people would probably elect a President who was a champion of the demanded changes.

    The only threats of any substance would be if abusive and corrupt foreign governments imposed economic sanctions. But because most foreign governments are not so abusive and corrupt, such sanctions would cause minimal harm.

    The only instrument a corrupt Federal government would have to deny a proper Application would be legalisms. A supermajority of States could and should easily ignore abusive Federal legalisms.

    The day that the American people need permission from the Federal government to hold a meeting, the Constitution will be a long time dead. We are not even close to that point yet.

  9. My comments in foavc.org forum
    http://www.foa5c.org/mod/forum/discuss.php?d=352
    “Notes on the sample application: The Call for the Convention”

    After the States have created their Application, Congress calls the Convention.

    Some pundits state that Congress, being empowered to call the Convention, is empowered to shape the Convention. Congress may not. The point of the Convention is to give the States the ability to bring an out of control and abusive Federal government under control. Any ability of the Federal government to manipulate the Convention would be an ability to extend its corruption to the Convention process. To give Congress influence over the Convention would defeat the purpose of the Convention.

    The Convention assumes that Congress is failing in its duties. It refuses to make necessary changes in the structure to the Federal government, probably because doing so would deprive its members of political power.

    The point in having Congress call the Convention is not to give Congress power over the Convention. Congresses call for the Convention is a recognition by the Federal government that any proposed Amendments produced by the Convention may eventually become part of the Constitution.

    Congress must call for the Convention if two-thirds of the States produce an Application. Because the Federal government calls the Convention, the Federal government is obligated to offer financing and otherwise support the Convention. The States are within their rights to refuse the support of the Federal government and may provide for the support of the Convention themselves. The States would be wise to prepare to reject Federal support at the first sign that that Federal machinations are at play.

    The Federal government may only refuse to call the Convention if the States’ Application is out of order. The Application would be out of order if two-thirds of the State legislatures did not use due process in choosing to Apply. Due process consists of exercising a republican process in electing to Apply. The heads of a branch of a State legislature may not choose unilaterally without the consent of the majority of the branch to Apply. A State Governor may not apply for the State in lieu of the State legislature. Except for that, the Federal government has little say in whether or not the Application is proper. The States determine whether the Application is proper. Congress provides a second check on the appropriateness of the Application, but the States should act to prevent an abusive and out of control Congress from harming the Convention process.

    If the abusive and out of control Federal government insists that an Application is out of order, and the States insist that it is, the Application is in order. The States may in this circumstance call the Convention themselves. An abusive and out of control Federal government may not stop a properly Applied Convention from occurring.

    The States should declare in the Application that they will call the Convention themselves if Congress will not. This lays the groundwork for possible reparations from the abusive acts of Congress. This statement tells the world that the Federal government is out of control and that the citizens of the United States are bringing their government back under control and that we are making corrections to their form of government to prevent similar harms in the future.

    At all times the world is kept on notice that the people of the United States are keeping their government subject to the rule of law embodied in the Constitution. Congresses call is their acknowledgement that they are subjects of the Constitution. If things are so out of hand that Congress will not acknowledge its duty under the Constitution, the people through their States will be in control. The stated insistence that the States will call the Conventions themselves if Congress does not is a statement that the people will keep their government stable and subject to the Constitution. At all times the people of the US and foreign government may be comforted that the government will be kept under control at all times while the Convention process is happening.

    The Preconvention should define the processes of the Convention sufficiently so that there will be no need for Congress to try to define the Convention. The call is primarily clerical; a useful formality. A call for Convention is not necessary to have a group of meetings to discuss changes in the form of Federal government. The call for Convention indicates that the Federal government acknowledges, willingly or not, that the product of such meetings will become part of the Constitution if ratified by the States.

  10. My comments in foavc.org forum
    http://www.foa5c.org/mod/forum/discuss.php?d=352
    “Notes on the sample application: The Convention”

    As a practical matter, two kinds of Conventions are possible per Article V. One Convention is called by Congress when Congress desires to amend the Constitution. This Congressional Convention is assumed to be called by a Congress friendly to the needs of the people. When Congress calls a Congressional Convention, it is assumed to be an extension of a benign Congress, so no measures are necessary to separate the Congressional Convention from Congress.

    The other kind of Convention is one that results by the Application of the States. This Convention, properly called the Civil Convention, is assumed to be the result of a Congress that refuses to make necessary changes to the form of government. Where the Congressional Convention assumes that Congress is doing its job, the Civil Convention assumes that Congress is in some way corrupt, and that the States must step in and act because Congress refuses to. The Civil Convention must be kept separate from Congress to prevent the corruption in Congress from influencing its work. The structure and processes of the Civil Convention must be different from the structure and processes of the Congressional Convention.

    The delegates for the Civil Convention must be non-partisans. Partisans are too close to the political fray that a Civil Convention is meant to resolve. The Federal government is effectively run by the two parties, the Democrats and Republicans. To keep the Convention from becoming an extension of Federal corruption it must be kept separate from the parties. Very little, if any, good will come from letting the parties into the Civil Convention.

    As discussed in a previous article the delegates to the Convention should be nonpartisan representative of the States, and they should be elected by the citizens of the State, not partisan members of government. Neither the State governments, nor the Federal government, nor any of the political parties should have influence on the Convention or the delegates. If the State or Federal legislatures could influence the Convention, they would be violating the purpose of having a separate body for the Convention.

    To prevent partisan interference with the Convention, the citizens of each State must elect their nonpartisan delegates directly.

    The first task of the Convention will be the establishment of the rules and procedures of the Convention. The second task of the Convention must be the vetting of the delegates. If any delegate is found to be a partisan, the Convention may not remove them from the Convention proceedings. They are their State’s delegate, not the Convention’s delegate. But the citizens of a State are within their rights to recall and replace their delegate if their delegate was elected under fraudulent terms. The Convention may, per their Convention rules, separate the partisan delegates from some of the Convention activities if the Preconvention recommended a nonpartisan Convention. The Preconvention should establish before the Convention that it should be nonpartisan, and it must define what makes a delegate a partisan.

    The Preconvention can make suggestions for rules for the Convention, but no body except the Convention can make the rules of the Convention.

    During the creative parts of the Convention the delegates should be in regular contact with their States regarding the contents of the work products of the Convention. Through a cycle of feedback from the States, the delegates should be able work out a proposed Amendment that is satisfactory to three-fourths of the States.

    After completing the proposed Amendment or Amendments, the Convention per its rules notifies Congress that it has completed its work. Article V does not explicitly require the Convention to inform Congress of the details of the proposed Amendment. The Convention is only required to notify Congress that the proposed Amendment is complete and ready for the ratification election by the States, so Congress can select a mode of ratification election. As a practical matter, Congress will learn the details of proposed Amendments from Party members in the State legislatures if from no other source, so secreting the details of the Proposal from Congress will not be an issue. Congress will know what is in the Proposal. To be most proper, the Convention should inform Congress of the details of the Proposal, since Congress was the group that officially called the Convention.

    Congress may notify the public, before the Convention finishes its work, which mode of ratification, State legislature or State convention, it will use. If Congress makes this decision preemptively it should do so before the Convention begins. Congress would be within its right technically, but grossly out of order morally, to make the decision during the Convention where it could choose a Mode of Ratification based on the apparent details of the Proposal. That kind of behavior could be used to manipulate the Convention. Any members of Congress who support in the Convention process would be advised to work to enforce silence from Congress with regards to the Convention while the Convention is active. Through the Convention process the people through their States are holding Congress to account for its inappropriate actions. In effect, Congress is being chewed out by its boss and is being told that it will be changing its ways. Congress should just nod quietly and say “yes, sir” and leave it at that. Any undue or problematic actions by Congress during the Convention can be addressed by the Convention through the act of proposing Amendments that address the source of the corrupt behavior. The Convention may even go so far as to propose Amendments to remove specific individuals from government service for life. While it is highly unlikely that such a Proposal would be ratified by the States, the politician’s career would likely be in ruins after such a Proposal was issued by the Convention.

    Congress, being the body that formally calls the Convention, is obligated to provide for the needs of the Convention. The Convention is not obligated to accept Congresses provisions. Technically, the Convention may accept provisions from any person or group. The issue of concern is that the person or group giving provisions may be attempting to influence the Convention. The States were the group that brought about the Convention through their Application, so it is proper for the States to provide for its needs. To assure the greatest neutrality, the States should provide for the Convention to prevent Congress, or any other group, from exercising machinations on the Convention. The State Governors may be the most proper agents to organize the provisioning. Getting 50 State legislatures to organize quickly and decisively may be difficult.

    To ensure the integrity of the Civil Convention the States should provide for its needs. Donations from individuals or groups could be seen as potential bribes of public officials, so, to prevent harms and appearances of harms, the States should set the compensation for the delegates, probably as a recommendation from the Preconvention. Imagine if Congress disagreed with the purpose of the Convention, and as part of its duty to provide for the Convention, Congress manipulated the compensation for the delegates. It could notify the delegates that it is substantially increasing the compensation after some delegates began to favor Congress, and it could notify the delegates that it is substantially reducing their compensation after the delegates produced language undesirable to Congress. To prevent the accusations of these kinds of manipulations, the Civil Convention should reject all provisioning by Congress and accept provisioning from only the States.

  11. My comments in foavc.org forum
    http://www.foa5c.org/mod/forum/discuss.php?d=355
    Notes on the sample application: The Mode of Ratification

    The Amendment Convention produces its proposed Amendments and their associated documents and formally notifies Congress of the documents’ completion. The Convention is not strictly required to present the documents to Congress; only to notify Congress that the Proposals are ready for ratification. The Convention should present the documents to Congress and the State legislatures and the State Ratification Conventions as a demonstration of courtesy. Congress called the Convention on the Application of two-thirds of the States, so the Convention should send the documents to the heads of the State Legislatures, the heads of the Federal Legislature, and to the heads of the State Ratification Conventions which should have been set up before the Amendment Convention began.

    The Convention delegates should have been in contact with the heads of the ratifying bodies as the Convention drafted the Proposals, so by the time the documents are completed they should be acceptable to the ratifying bodies. The actual ratifying vote should be primarily symbolic at this point. The only way the Proposal would not be ratified would be if the limiting designs of the Preconvention were unworkable. For example, if the Preconvention set up a limited Convention to create a Line Item Veto, and the Convention delegates reasoned out that the Line Item Veto is a monstrous change in the form of government, the Convention would be right to end the Convention process and notify Congress and the States why they could not complete the Proposal suggested by the Preconvention.

    Per Article V, Congress chooses between the State legislatures to vote on ratification, and the State Ratification Conventions. Congress must choose the Mode of Ratification before the Convention begins. If it does not, the Convention must draft a Proposal that meets the requirements of three-fourths of both the State Legislatures and the State Ratification Conventions. This is not the condition defined in Article V. The Proposal must meet the requirements of only one of those bodies. Therefore Congress must choose the Mode of Ratification before the Convention begins.

    Congresses choice of Mode of Ratification is not about choosing which body should vote on Proposals that they have never seen before. Congresses choice is about which body the delegates of the Amendment Convention will be communicating with as they draft their Proposals. The act of delaying the choice of Mode until after the Convention begins should be viewed as an act of belligerence on the part of Congress. As an intentional act, this belligerence could be prosecuted as a type of usurpation. The Convention should consider Proposing amending Article V so that such actions by members of Congress must be prosecuted by a Federal, perhaps a military, court. If the Convention is a limited Convention, the Preconvention should consider including something similar to this in the limiting recommendations.

    Ideally, Congress should choose the Ratification Convention Mode so that as as much separation as possible is kept between the parties and the ratification. This would help ensure that the Convention is close to the hearts and minds of the people, and that it is as free from political machinations as possible.

  12. My comments in foavc.org forum
    http://www.foa5c.org/mod/forum/discuss.php?d=356
    Notes on the sample application: The Ratification

    Of the two modes of ratification–the State Ratification Conventions and the State Legislatures–the Ratification Convention is the preferred one for ratifying proposed Amendments from the Civil Convention. It is less partisan. It is closer to the minds of the people. And it is further from the machinations of the political parties and the Federal government.

    While the Civil Convention was in session its delegates should have been working with the State Legislature or State Ratification Conventions or both while drafting the proposals. By the time voting on ratification comes around the Proposal should be a done deal. The vote will be necessary, but by the time the ratification happens it will be mostly symbolic.

    After voting on ratification, the State Legislatures or Conventions will vote and share the results of their votes with each other, the public, and Congress. The ratification bodies will vote to ratify or reject, or they will not vote. If one-quarter plus one of the ratification bodies votes against ratification, the Proposal does not become an Amendment. If three-quarters ratify, the Proposal becomes an Amendment. If some of the ratifying bodies do not vote and the Proposal is neither ratified or rejected, the Proposal remains active and may be ratified or rejected at any time by the bodies of the nonvoting States.

    The vote to ratify must be a positive vote, meaning that if a delegate or ratification body does not vote, the lack of balloting is not counted as a negative vote. The Proposal is unresolved. It is not ratified or rejected. It is remains a potential Amendment.

    Article V does not place a time limit on ratification. The Proposal can remain unresolved and potentially ratifiable for as long as the Constitution is the highest law in the land. One way of preventing an unresolved Proposal is by placing a time limit for ratification in the proposed Amendment itself. The wording of the Proposal can state that the Amendment is only valid if ratified before a certain date. This forces the ratification body to act before that time. This helps prevent States and individual electors from holding the Proposal hostage to gain benefits of some sort.

    The only issue with placing a time limit in the Amendment itself is that it leaves unnecessary text in the Constitution. A workaround would be to place the time limit in the proposed Amendment, but to also put writing into the Proposal requiring that the text concerning the time limit be stricken from the text after ratification. This way the original proposed Amendment would be one writing, and the final Amendment in the Constitution would be shorter, lacking the condition of the time limit.

    If that could be done it would be simpler to just permit the Amendment Convention to state a time limit for ratification and skip the extra steps in modifying the text of the Amendment. However, the conditions of the Constitution need to be observed. There must be a separation between the Amendment Convention and the ratifying body. The Amendment Convention is not empowered to direct or influence the ratifying body. The Amendment Convention is only empowered to propose Amendments. Likewise, Congress cannot direct or influence the ratifying body, so it cannot set time limits either. Time limits must be included in the writing of the Proposal itself.

    But as a practical matter, because the Civil Convention has been working with the ratifying body, the election should occur quickly and with great celebration.

    After three-fourths of the ratifying bodies ratify the Amendment, it is a part of the Constitution. The Federal government can check the election processes and question whether due process was followed in the ratification and give an opinion on the matter, but the States, not the belligerent Federal government, must determine whether the ratification was proper. The State Legislatures may choose to challenge the ratification processes. To ensure propriety and a safe and sane change in the Constitution, a time limit should be included in the Proposal for States to challenge the processes. The Civil Convention should put writing into the Proposal similar to the ratification time limit, saying that the Amendment will not be included in the Constitution until after a certain amount of time has passed after three-fourths of the States have ratified the Amendment.

    The State Legislatures should, after the ratification or rejection is finished and the properness of the balloting is checked, have a follow-up vote on whether to recognize the propriety of the balloting. This removes doubt from the process and keeps the verification of the balloting out of the hands of the belligerent Federal government.

    If improprieties in the ratification process are found to have occurred, that part of the ratification process that was corrupt may need to be repeated. If an unqualified delegate or legislator voted, and if their vote affected the outcome of the ratification election, that delegate or legislator must be replaced, and the election repeated. That will take time. The extra time should be considered when the Civil Convention puts time limits in the Proposal. To reduce potential problems due to unqualified electors, the Preconvention should set up the election of Ratification Convention delegates so that alternative delegates are immediately available in the event that a delegate is found to by unqualified. One approach would be to elect three delegate from every district, preferably with Counties being the districts, and with the two highest vote recipients being the official delegates and the third highest being the alternative delegate. The Ratification Convention can be set up so that if an initial delegate and the substitute delegate are both unqualified, their vote is not counted and tally of ballots does not consider their vote when determining the vote’s majority. The Ratification Convention may also be constructed so that delegates have a limited amount of time to vote in the affirmative, otherwise their vote is considered to be negative by default.

    Having two delegates per district should normally give each district a delegate who would be supported by each of the two main political parties, and that should have the effect of negating conflicts about which party would have the strongest representation as delegates. Through this process, the Ratification Conventions would be nonpartisan by political involvement, and bipartisan or nonpartisan in the character of the delegates.

    The same mode of ratification must be used in the repeat of a ratification process. A State Legislature may not change their State’s ratification mode from the State Ratification Convention to the State Legislature or vise versa.

  13. My comments in foavc.org forum.
    http://www.foa5c.org/mod/forum/discuss.php?d=357

    Notes on the sample application: Primary Threats

    The primary threat to the Civil Convention process would most likely be a possible interjection by Congress. The members of Congress are concerned with appearances. For the States to attempt a Civil Convention the Congress must not be doing its job, and the members of Congress do not want to be seen as not doing their job. They do not want to be seen as being the bad guys. So Congress would most likely would want to draft its own version of a proposed Amendment the moment it became apparent that the States were going to do so through the Civil Convention process.

    The States must not accept this. Before the States would come to desire the Civil Convention, Congress would have to be opposed to the desired changes, so Congress must be considered a belligerent party. If Congress created its own version of a Proposal, its version would most likely be watered down or have a loophole of some kind that will negate the effectiveness and purpose of the State’s proposed change. To prevent the appearance of this kind of impropriety, once the States begin the Civil Convention process, they must commit to it and see it through themselves. Once started, they must openly deny Congress the ability to intervene in the process. The States would be appropriate to make a declaration of condemnation of Congress if Congress attempts to interfere with the process. Doing so would lay the political groundwork for the States to reject proposed Amendments issued by Congress that attempt to affect similar but slightly altered changes. When the States agree to the Preconvention, the States should also make such a declaration as part of their agreement.

    With the groundwork laid to make Congress out to be the bad guys if they tried to interject into the process, the members of Congress would probably be inclined to give their full support the Civil Convention. To not do so would be to accept the appearance of being the belligerent representatives who brought about the need for the Civil Convention in the first place. Once started, with appropriate warning given to Congress, the Civil Convention process will roll through to its final end, not just unimpeded by Federal machinations, but actively supported by the members of the Federal government.

    A second threat centers around the lack of a good Proposal and zealotry. Lots, probably hundreds, of proposed amendments can be found floating around public venues. None of them are being made into credible Proposals, usually because they are more destructive than constructive. Most or all of the proposed changes in government are not well thought out corrections; they do more harm than good. The Balance Budget, the Line Item Veto, Term Limits, Direct Election of Judges, etc. when put under close and rational analysis are shown to do more harm than good. Enough reasonable people are aware of the problems with those kinds of proposals that the proposals do not get implemented. The people who push those proposals are zealots, and like most zealots, they are unreasonable. Reasonable people see the zealotry and begin to associate all amendment proposals with zealotry. The Civil Convention gets a bad name. This problem of appearance contributes significantly to the creation of constructive Proposals. The supporters of any constructive and necessary change in the form of Federal government must address this problem assertively, otherwise the public will lump them in with the zealots, and constructive and necessary changes will be ended before it begins.

    A third threat, one that this set of notes attempts to begin to address, is the problem of fear of the unknown. Reasonable people will not support changes in their government when presented with too many unknowns. Everything about the Civil Convention process must be laid bare to the public. The process itself must minimize the doubts and fears of the public. Where there are unknowns there will be fear, and with fear will come resistance.

    The opponents of constructive and necessary change will attempt to exaggerate the unknowns and excite up as much fear as they can. They will attempt to cast the appearance of zealotry on the supporters of change. When all else fails, they will attempt to manipulate the process to implement a less effective variation of the change.

    With that, I end this draft of this set of notes. Copies of these notes and the draft of the sample Proposal can be found at . Future versions of these drafts may or may not be published in the FOAVC.org forum, depending on the feedback I receive here.

    • Great constitutional analysis and solutions. A bit deep, but I will review Your many points.

      I propose an alternative backup strategy (unpolished ):
      a) Coordinate the 52 States on the obvious need to re-assert States rights by aggressively using impeachment for any slight violation of State sovereignty as afforded in the written Constitution.
      b) Create State organizations to educate all newly elected Congresspeople on the constitution, and possibly test and grade them.
      c) Coordinate and facilitate the Congress members to un-apologetically bring impeachment proceedings against any Supreme Court Justice that violates this Constitution.

      Surprisingly, even liberals believe enforcing the costitution is vital. Though admitedly, most of the people I have interviewed havent a clue to how its supposed to actually work ( ie Enumerated Powers, Congressional Declaration of War… etc etc ).

      • But how are you going to make these things happen? People want them to happen today, but they are not happening today. The partisans control almost everything; the political system, the education systems, the news media. The partisans on the left do not want these kinds of changes because they get the power by fighting for change, usually in the form of more powerful and oppressive government, irrespective of whether it is necessary or destructive. Does it makes sense to ask leftists to enforce limits on their ability to progress their changes?

        The partisans on the right are conservatives. Conservatism is by definition resistance to change, and conservatives resist change simply because it is change. Conservative politicians gain power by fighting against change.

        With those partisans in control, how can your suggestions be made to happen?

        (By the way, liberalism is the belief in freedom. I am a liberal, or more specifically, a liberal rationalist, just as Thomas Jefferson was. The partisans you refer to as liberals are not liberals at all. They are leftists. Leftists believe in less freedom and more state power, which is despotism. To prevent confusion, whether manufactured or accidental, I would rather they be referred to as leftists, not liberals. TIA. Scott.)

  14. My comments from http://www.foa5c.org/mod/forum/discuss.php?d=358

    Initiating the Civil Convention

    One issue worth considering is the problem of initiating the Civil Convention. The last national election demonstrated, to me at least, that the general public is not rational by nature. The Framers understood this about democracies, and the American form of government is a democracy. It is representative democracy, which is a democracy by proxy. Instead of letting the majority of citizens decide on issues, the majority of citizens elect a representative who believes as they do and who will support the same issues they do. The representative has the proxy vote of the citizens. The net effect is generally the same as a direct democracy. Representative democracy has most of the characteristics of direct democracy.

    As de Tocqueville pointed out, democracies self-destruct after about a couple of hundred years. A majority uses its majority power to gain and remain in power. The majority becomes in effect a single party ruler. Eventually, the single party takes advantage of the minority. Eventually, irrationality dominates as it always does under single party rule, and the democratic society collapses, either inwardly from its own beauracratic weight, or from being conquered because it is weak.

    I do not see that kind of society suddenly standing up and demanding rationality from government and deciding to amend to flaws in the Constitution that allow it to have the power it wants. Something else must happen to bring about deep changes in government.

    I do not see lawsuits against the Federal government to force the Civil Convention as practical either. Bill Walker’s case provides a great example of why.

    In a suit against the Federal government, who is the judge? Why, the Federal government of course.

    Who appoints those judges? The Federal government.

    Who is the jury? The Federal government.

    Who is the executioner? The Federal government.

    Who defines the rules of the suit? The Federal government.

    Who makes the laws involved in the suit? The Federal government.

    Who has virtually unlimited funds to fight the suit? The Federal government.

    Every lawyer going into Federal court depends on the positive opinion of the Federal judges, so no lawyer is going to destroy their reputation by knowingly offending the Federal government by arguing a case that is offensive to the Federal government.

    Bill’s case was over before it started.

    The reason for including the Article V Civil Convention was to allow a means to repair the Federal government when it became too powerful and abusive. I do not see suits against a power hungry and abusive Federal government as an especially effective means to initiate a Civil Convention.

    So how can the Civil Convention be initiated?

    Most likely two things would have to happen.

    First, some working examples of the changes would have to be enacted by other nations or states. Some other nations or states, perhaps smaller nations that could put the changes into effect more easily than our large beauracracy can, must have enacted the proposed practices. They must demonstrate positive results. Using the Constitutional Court as an example again, the Constitutional Courts of other nations must be found that demonstrate its effectiveness. In this example, the Constitutional Court system of South Korea and Spain would be examined to get a sense of the effectiveness and problems of such a system.

    Some US states would probably have to enact the changes at the state level as a test. Since my example is something that probably only a more conservative state would enact, a small group of strongly conservative states such as Texas and Mississippi would enact it, and demonstrate whether or not it is effective. Likewise, a leftist Amendment would have to be tried by a small group of leftist states.

    The second thing that would probably have to happen is a severe national crisis. The public needs a focus and motivation before we act. We did not enter World War II because of principles before Pearl Harbor. We entered because the Japanese created a crisis that focused and motivated us. The “fiscal cliff” is an example of one possible such crisis today.

    With examples of efficacy of changes, and with focus and motivation, the people will be able to insist on those changes. Of course, when the people become motivated in a certain direction, the political leaders will go in that direction also, so it is more likely that the Congressional Convention will happen before the Civil Convention. That is unfortunate because the Civil Convention would produce a better Amendment.

    To have a Civil Convention, those states that implemented the proposed change would have to support and motivate it before the Federal government attempted to do so.

    That is how I see a Civil Convention happening.

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