What If They Hijack The Convention?

(Discussion #4 – Who controls the Convention to propose Amendments?)

Chapter Four of The Liberty Amendments is on tap for today: which is concerned with the concentration of power in the Supreme Court, and how we can restore integrity to that branch of government.

However, you’ll notice the title of today’s discussion is about the fears of a “hijacked” convention. Since we began these discussions, we’ve seen two strongly-negative sentiments crop up repeatedly. These sentiments are firstly, fear of a hijacked (or “runaway!”) process, and secondly, fear that it’s all too late, and we must give up the notion that we can change anything. The latter is occasionally expressed in an appeal that we all begin the lifetime-consuming process of enlightenment and salvation. While those are worthy goals, the nation will be long gone before they are achieved.

Other than those admirable, spiritual appeals, the rest of the negativity is, frankly, quitter talk. Nothing more need be said about it.

But the hijacking fears are different, because they are being used not only to dispirit us, but also to urge action in another direction. Many fear mongers claim the hijacking of the process by the various forces of statism, tyranny, and oppression is inevitable—that we must try extra-constitutional methods, instead. We covered the extra-constitutional pathways in Discussion #1. The major concepts there are:

1. Nullification
2. Interposition
3. Secession
4. War

Each of these suffers from increasing difficulty as you go higher up the list. All have been tried, and none of them has been successful as a path to Restore the union (although the last one did rid us of the scourge of slavery). You may have doubts about the Article Five second process, a convention of the states for proposing amendments. However, the second process carries one certainty that none of the listed alternatives share: the Article Five second pathway to amending the Constitution is unquestionably constitutional.

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Getting in depth to the potential for a hijacking, you have to ask yourself, just who gets to run this “convention for proposing amendments,” anyway? Because in answering that question, you will see why a hijacking of the process is a very difficult thing, and success of such an attempt is unlikely.

So who does get to control the Convention? The answer is in the last line of the Preamble to the Constitution, which names our nation: The United States of America. Though the Constitution is ordained and established by The People, and the Tenth Amendment reserves powers not granted explicitly to the Federal government, “To the States respectively, or to the people,” the Constitution itself is a binding, legal instrument defining an agreement between the States and the Federal government which it (the Constitution) establishes.

In fact, the Convention in 1787 to propose changes to the “federal constitution” (meaning the political system used by the country) was requested by a majority of the thirteen States, and endorsed by the Articles Congress^[1]. Delegates from the States drafted it. The States ratified it. Thus, the only entities empowered to alter this agreement are those specified in Article Five: Congress, or the States. That’s all. The people inside the federal leviathan are not a part of the Convention of the States process. They can lobby as citizens, and try to lure state legislators to do what they want, but there are over seven-thousand sitting legislators in the various States. It’s not a simple task, like buying a US Senator.

Further, as we’ve discussed, those representatives at the state level answer to YOU. In many cases their kids will go to the same schools as your kids. They might live in the same town as you. You can probably meet with them at a local coffee shop once a month. It’s a lot harder for a man in that position to risk making all of his friends and neighbors angry just so he can be considered a friend of the next potential Democrat to hold office in Washington.

Go ahead and doubt me on that concept. But a huge number of state legislators cannot afford to quit their day job in the community. Representation is a part-time thing for them, and in many states, the pay for being a representative is quite low^[2]. You have enormous influence with these men and women. USE IT!

How do the States hold a Convention? The first hurdle to overcome in the process is for each State to “apply” to Congress to call for the convention. If every state calls for a different sort of convention, then they cannot meet the requirement to achieve the necessary two-thirds of the states needed to get Congress to call for the Convention.

Do you think Congress is going to be in such a hurry to give up power that they will pretend any and all applications are the same? Those two-thirds (which is thirty-three and one/third states – I do not see a provision for rounding in the Constitution, so I would make sure we get thirty-four states to be sure) of the States must apply for the same thing. If they have to apply for the same thing, they must get together somehow and draft such an “application.” Then they can all pass Resolutions requesting the same thing. These people are mostly lawyers. Exactness is their stock in trade.

So right away, just to get the ball rolling, the States have to ask for the same thing, meaning, “To send a delegation to a Convention for the purpose of amending the Constitution.” Here is where prudence will interject itself: each state will want to protect itself from the dangerous proposals of other states. Alabama and North Dakota, to name two examples of very Conservative states, can be counted on to protect themselves from the liberal tendencies of the Northeastern states to call for any amendment that they would not approve. So they will direct their delegation on what sort of amendments it will be empowered to discuss. Also, each state gets one vote, regardless of number of delegates.

Thus, if California and Maryland send a delegation empowered to discuss, “Free healthcare for anyone who lives in the United States,” then only the delegations so-empowered by their respective States will be able to vote on such a proposal. In other words, Alabama and North Dakota will be required to vote “no” or abstain. If a delegation exceeds its authority and decides to vote “yes” anyway, they can be dismissed immediately, which would render their votes null. How do I know this without being a lawyer? Because I would lobby for such a dismissal/nullification rule when meeting with my state representative, and I would make sure they included it in their application to Congress. They aren’t stupid. They’ll get it done.

Getting protection from hijackers is not going to be a huge uphill battle. The States’ legislatures exist to deal with State matters, not some huge, nationwide social experiment. Also, a sitting legislator who grants more power to the federal government is simultaneously making himself less powerful. They can definitely figure that out.

This process belongs to YOU! Step up and take charge of it, and ignore the fear mongering about hijacked processes. Hold your local representative responsible. Get to him or her FIRST, and visit them often.

That’s as far as I will take this argument. Please extend it and bash it in the comments!

Chapter Four of The Liberty Amendments is a proposal to limit the current ability of the Supreme Court to alter the meaning of the Constitution, unchecked by any other process or entity. The chapter is entitled: An Amendment to Establish Term Limits for Supreme Court Justices and Super-Majority Legislative Override.

I know no one who believes our Supreme Court has always made excellent rulings. In fact, most of us live in fear of nearly every ruling made by these unelected men and women. Fear, because in one single vote, perhaps depending on one justice alone, they can destroy our livelihoods, our schools, our food production systems, our banking, our ownership of property, and even our rights of citizenship. Even our friends on the left have the fear that certain rulings will be overturned and their lives will be disrupted, too. This state of affairs was not what the Founders intended.

Our Founders believed in accountability in all officials in government, and our Federal Court judges are among the least accountable of all high officials. We must find a way to limit the vast damage they can do to our Constitution with one single man or woman’s vote.

The first part of Levin’s proposed amendment is to limit the terms of Supreme Court justices to twelve years. He provides for this in three sections, two of which are necessary to state how the terms and vacancies must be handled.

The remaining sections are all concerned with giving Congress and the States a way to override any Supreme Court ruling when a super-majority agrees to do so. He provides language to prevent such overrides from themselves being overturned. He then provides a two-year limit in which to accomplish this override.

You should definitely read and re-read this chapter, since Levin’s proposal is something along the lines of what our nation needs to halt the runaway (Run Away!) train of judicial fiat. My one question is, since the two-year clock begins winding down rather fast, meaning that any override process needs to happen in both Congress AND the States simultaneously to have any chance of success in one or the other, how do we resolve priority between those two processes?

Think of that as your logic exercise. I really hope you will join the discussion so we can take this thing apart and understand it thoroughly. Don’t leave this up to the other folks out there. They’ll probably just hijack it or something.