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The First Stop Sign in America

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What's more powerful, the right to complain about government, or the right to reform it? Clearly, one right is more powerful, and indeed it's that one which makes an American citizen who and what they are--a member of a society with the power to alter or abolish what it dislikes about government. You'll find very few Americans today who want to abolish the government we have, the one with three branches--legislative, executive, and judicial. What the vast majority want is to keep what we have, but address concerns regarding how it currently operates.

Polls show as few as 9% approve of Congress, or put another way, 90%+ disapprove of Congress , a statistic that's been trending for a decade. When the institution established to represent the will of the People is disapproved by 90%, and for ten years or more, it's self-evident it's time for them to exercise their right to alter what they dislike. History teaches that if We don't, forces of corruption will alter it against our wishes. Some argue that's already occurring due to court decisions and corporations acting as persons. This status quo of politics has resulted in government drowned in private money, where laws/loopholes go to the highest bidders, written by lobbyists, signed off on by members of Congress, and disliked by the People.

The Constitution is designed so that in the event Congress becomes unresponsive to the needs of the People, a convention of the states considers amendment proposals, and those voted up by 2/3 are then sent on to the People for ratification. Ratification by the People requires a super-majority of 3/4, a principle that regardless if conservative or liberal, a proposal must have all one side signed on, plus at least half the opposition, or it goes to the dustbin of history. 75% approval makes it mathematically impossible for a society to harm itself in this process of building consensus.

It all sounds pretty simple--if Congress stops working, the states hold a convention to propose amendments, and 75% consensus of the People determines which are worthy of adoption. So why haven't we ever convoked this federal convention of the states as a right of the People? The answer is complicated, but in a nutshell, it's because both the People and the members of Congress have assumed what political commentators have asserted for decades--that a federal convention opens up the possibility of the Constitution being rewritten. This is untrue for two reasons: the Article V Convention is a specific type where delegates propose amendments "to this Constitution," meaning the current articles and amendments, meaning a delegate would have to propose an amendment allowing for a new constitution, get it ratified by the People, and then come back to draft anew; in other words, the Framers did not leave a self-destruct button in their masterwork. Also, it's irrational to believe 75% of the People are going to approve of tinkering with the Constitution, let alone writing a new one. You may achieve fifty percent approval on this partisan issue or that, but there are few things in a society which can garner 75% approval. In this sense, a convention is not a re-write, but an upgrade--we will keep what we have, and adopt such proposals as are deemed necessary by the People.

Even though a federal convention also involves the ratification process as a check against marginal ideas becoming law, many Americans still retain irrational fears about this right of the People. In fact, the only reason the Article V Convention has never been called is because the People have been conditioned to fear it, and if the People don't push Congress to call it, it won't happen.

Lately there are groups vying to bring about a convention of the states. The problem with these groups is that by and large they are advocating for conventions to address specific issues, as opposed to advocating for the Article V Convention to propose amendments in general. In fact two of these groups, Compact for America , and Convention of States, characterize themselves as the Army and Marines of the convention movement. But what really is the difference between these types of conventions, and what does it mean in terms of practical politics? To best explain these questions, let's use metaphor: The first stop sign in America emerged in 1915, Detroit , Michigan . Of course with the advent of the automobile, the human beings alive then noticed the problem of accidents occurring at intersections. So they wrote a law, the letter of which was and still is that a vehicle "shall come to a complete stop" at a stop sign. The letter of the law embodies the spirit of the law--that we don't want folks harming each other at intersections.

When the Framers were drafting the Constitution, history and experience had taught them about the effects of corruption on governance, and so, as mentioned above, they provided for a way to propose solutions to a government no longer operating in the interests of the People. The letter of the law is that upon the application of 2/3 of the states, the Congress shall call a convention to propose amendments. The letter of the law does not state that applications must be contemporaneous, cast within five to ten years for instance, nor does it state that applications must be for the same subject. The reason is, the spirit of the law is that there will always be those opposed to a convention, thus the call is based on a simple and objective numeric count, and no other terms or conditions apply. Indeed, if this is government of, by, for the People, and the final word on what comes out of a convention is that of the People, then nothing but consensus of the People will result from the process, and thus there is no reason to limit an application for it. In fact, any attempt to impose a limit on an application for a convention or the convention itself is a sign of irrational fear at best, sly corruption at worst . Of course the reason to even propose that a federal convention of the states be limited is that irrational fear that a convention might "runaway." Runaway where, into the lap of the People?

In a recent email exchange in which many of the folks behind the CFA and COS groups participated, that discussion narrowed down to a simple question: should the Article V Convention be bound by the same rules/laws which bind the Congress? It was decided that until clear on that, one is everywhere and nowhere on the subject of a convention. So what's the answer? Equal protection under the law. Although the constitutional principle of equal protection post-dates the principle of a federal convention, nonetheless it instructs us: because there are only two citizens with power to propose amendments--members of Congress and Article V Delegates--they form a class and must be treated equally; if one suffers election to attain the power of proposal, so shall the other; if one must achieve two-third consensus within the assembly to get an amendment off to the states, so shall the other, and so on. Not only do members of Congress and Article V Delegates need to be treated and protected equally, so do the People and the states. We/they must be protected that Article V Delegates are allowed no more nor no less power than members of Congress. Groups such as CFA and COS want to make up their own rules as to how the convention is to be called and how it's to operate--the state of Indiana has even passed legislation where any Article V Delegate from their state engaging in discussion outside certain issues faces one year in prison. As one might wonder, if we can't agree that the Article V Convention ought to be bound by the same rules/laws as the Congress, will we ever convoke a convention or will we talk about it until it's too late?

According to the Constitution, Congress shall issue the call, which means We must make Congress obey the law and do so, and if not, why would we expect it to obey anything else? In other words, if CFA and COS hold their limited conventions without forcing Congress to play its part in the process, why would Congress send amendments out to the states? Why not just inform the People that the 113th Congress is currently preventing the Constitution from operating as intended by refusing to issue the call for the Article V Convention? Why not point to the Congressional Record? Why not simply argue for the Constitution and the Article V Convention in terms of fact and law? Why not argue for We The People?

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Writer/artist/activist from California, with a degree in Creative Studies from the University of California at Santa Barbara. Advocating for the convention clause of Article V since 2001.

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