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Democracy, oligarchy, a convention of states and the Michigan application -- (Part I)

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The Michigan legislature's April vote to call for a constitutional convention could trigger a people's movement capable of ending our oligarchy and restoring our democracy. It is possible, though improbable, that Congress may recognize Michigan as the needed 34 th state to "apply" for an Article V convention. Article V reads in part ". . . on the application of the legislatures of two-thirds of the several states," (Congress) "shall call a convention for proposing amendments . . ."

For over two centuries Congress has resisted this constitutional check upon its power. By some counts, over 400 applications have been received by Congress -- only to be ignored. We the people have never been sufficiently unhappy to go to the trouble of forcing Congress to do its duty. But this may be changing. Congress maynot responds to the "Michigan 34." Nevertheless, there are signs that we are now sufficiently unhappy to act. [1]

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From flickr.com/photos/28567825@N03/2871184559/: George Washington (Lansdowne portrait), First President (1789-1797)
George Washington (Lansdowne portrait), First President (1789-1797)
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The Declaration of Independence gives us the right to "alter or abolish" our government and to "institute" a new one. In his Farewell Address of 1796 Washington said, "The basis of our political systems is the right of the people to make and to alter their constitutions of government." James Madison, in Federalist 49, alluded to our Constitution as "established by the people" and "unalterable by the government."

Does the Michigan application really make 34?

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House Speaker John Boehner is "reviewing whether the action by Michigan has triggered the constitutional mandate that Congress call a convention." [2] Whatever the result of Boehner's review of the 34 applications now in the news, the present level of dissatisfaction with our federal government makes it probable that a second constitutional convention is on the horizon. State legislators themselves are organizing to bring one about in their Convention of States (COL) movement.

Must all 34 applications deal with the same issue?

Some of our academics tell us that the 34 applications required for the calling of a convention must all specify the same specific purpose in order to force Congress to call one. The Michigan application is for a convention to propose a "balanced budget" amendment. According to this idea, the other 33 would also need to be for a "balanced budget" convention. Many, but not all, are in that category.

Nowhere in the Constitution is this "same purpose" requirement stated or implied. Our only previous convention considered all issues and there is no constitutional justification for so limiting future conventions. Article V authorizes a convention for proposing "amendments" not for proposing "an amendment." Madison said that, in his opinion, no convention would be needed at all if 34 states agreed to propose the same amendment. [3]

Further, the Constitution authorizes a convention of states, purposefully designed by the Framers as an alternative to amendments proposed by Congress. Congress should have no say in any matter concerning it. It has no power to call a convention on its own, nor does it have the power to decline calling one applied for by the requisite number of state legislatures. By exercising a power it does not possess, Congress has long been in violation of its sworn duty to uphold the Constitution.

Are there any real dangers to calling a convention?

There is one danger which, if it is not decisively and effectively dealt with, would make a convention worse than useless - and should preclude its being called. This is the danger that money will be allowed to influence the selection or election of delegates. In this event, the convention would simply replicate our present Congress. This danger can be avoided by a requirement agreed to by two-thirds of the state legislatures. This requirement could specify that delegates must be either selected at random from among the registered voters of their congressional districts, or elected in elections that prohibit the contribution, solicitation or use of private money in any amount.

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Can Congress decide against "the people" exercising their right to alter?

Congress has, in effect, been so deciding. However, the Constitution gives this power, not to Congress, but to the legislatures of the concerned states. Article V reads in part, that amendments shall be valid when ratified by of the state legislatures or by state ratifying conventions "as the one or the other mode of ratification may be proposed by the Congress." This has been taken to mean that the federal government can make the final decision on whether a proposed amendment is ratified by state governments or by "the people" (that is, by state legislatures or by conventions of delegates elected specifically for this purpose).

However, there are strong arguments against this interpretation. First, the word, "propose" means (and meant in 1787) "suggest." That is, the federal government suggests one method or the other and each state legislature either takes or rejects the suggestion. Second, deciding that state legislatures have this power rejects the "unalienable" right granted "the people" by the Declaration of Independence to alter the Constitution. This right is supported by Madison's allusion to our Constitution's being "unalterable" by government -- and by Washington's Farewell Address. Third, the original Framers specified in Article VII that the Constitution itself had to be ratified by state conventions rather than by state legislatures. A second "convention of the states" should require that its proposed amendments be ratified by state conventions and should alter Article V to make it consistent with Article VII.

(to br continued)

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http://www.governmentreform.org.

Neal Herrick is author of the award-wining After Patrick Henry (2009). His most recent book is (2014) Reversing America’s Decline. He is a former sailor, soldier, auto worker, railroad worker, assistant college football coach, (more...)
 

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