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OpEdNews Op Eds    H3'ed 12/20/16

Dear Angry and Confused American

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Dear Angry and Confused American,

On December 7, 2016 there was a live debate in NYC about the convention clause of Article V: click here

I assume you agree the Constitution is unique in all political experience, and thus so is its convention clause. There is no other such found in a fifth article of a nation's high law anywhere in history or presently on Earth. Some might think it a quibble or splitting hairs as to whether or not we capitalize the Article V Convention as a proper noun. Yet, as a proper noun we know we're not talking about a constitutional convention, but a unique assembly called by the US Congress to formally propose amendment language to the Constitution. Anti-Conventionists today seem to confuse a noun with a proper noun in order to bolster their argument, when the distinction between the two is essential to understanding what's being discussed.

Consider this: if we ever have a federal convention we can be certain that it will adjourn. Regardless of proposals on the table, at some point the presiding officer(s) will call the question of whether or not to adjourn. No delegate is then going to stand before the nation and declare that they might have a new proposal the following week, and make the motion to remain convened until then. If a delegate did, even though it was clear other delegates were satisfied the convention had considered everything worth considering, the motion would fail to carry and the convention would adjourn. Of course this is an example of practical politics, and it's as if Anti-Conventionists conceive of a world where practical politics would not apply to the Article V Convention. In fact practical politics are unavoidable whenever humans join to determine consensus of the whole--and especially more-so if the delegates represent a nation as vast and regionalized as the USA. In terms of practical politics, a large and diverse assembly of humans works in our favor.

Because of practical politics, if we know a convention will adjourn, then we know at that point in time 1) nothing will have changed legally, and 2) it will be perfectly clear to everyone that the process of proposal and the process of ratification are two very different things.

Why did the Framers not set ratification at 25% approval? Because facts/logic/reason and political experience show that political change must be legitimized by popular consent or you won't have a legitimate government for very long. Which led to the question of exactly how popular consensus must be for things to work? Unanimous? No, we found out that doesn't work, and the convention of 1787 in part convened to address the problem unanimous consent poses to a functioning government. 25% would be impolitic and a mess, and 50% would still leave a republic susceptible to a reactionary period and/or persuasive demagogue. What 75% approval means, is that whatever the idea and wherever it falls on the political spectrum--Left to Right--Right to Left--it must get all one side signed on, plus at least half of the other, or it fails. In other words, 75% approval makes it mathematically impossible for partisan ideas to become high law. That's why the bar was set at 75% for amendments to be ratified, and 50% for election of policy-makers, because those percentages adequately address the political tasks needed to maintain a functioning representational government. If electing members of Congress and the President required 75% approval we'd rarely have a Congress or a President. Anti-Conventionists must concede that 50% and 75% are two different percentages and mean two very different things when it comes to practical politics and the winds of change.

As you may or may not know, Representative Messer, 6th District of Indiana, introduced H.R. 5306 this past summer. If it had made it to the floor for a vote and passed, it would task the director of the National Archives and Records Administration (NARA) to go back through Congressional Records, find all state applications for a convention, and officially enroll them as federal documents so that they can be officially counted by the Congress. H.R. 5306 also included that all rescissions be tallied too, so that the two columns would be placed side by side to give us a correct tally as to where we are regarding the constitutional instruction to call a convention.

For the sake of clarification, let's say that next year the resolution is reintroduced, passes, and NARA findings show we're overdue for the convention call. Congress calls a special session and issues the call for six months from that date. If such a news item emerged, what do you think is the first thing that will happen? The first is that anyone still paying attention will blink. After everyone blinks, the next to happen is that thousands of Americans in each of the fifty states will be on the phone to their state officials, asking how their state intends to engage in the process, and who gets to be delegate. Next, we will get news of the states declaring whether they intend to elect or select delegates (in fact Michigan and Indiana, respectively, have already done so). Regardless of whether a state elects or selects its delegates, the next to happen is that a formal discussion will begin in each state and nationwide: what is a good idea for the 28th Amendment? Next, the convention convenes, and parliamentary procedure is implemented (practical politics will guarantee it because most delegates will not want to fight to be heard and parliamentary procedure ensures that they'll simply have to raise their hand). From there, the long, slow, deliberative process begins over amendment language (as you probably know this was displayed in a mock-convention this past summer where 150 state legislators convened in Williamsburg).

Anti-Conventionists repeatedly claim that we don't know what will happen, when we do: the call will be issued, those choosing to do so will engage in the formal discussion of amendment language, and consensus will be built to one degree or another. In sum, all that will happen with the calling of a convention is that the national discussion about amendments to the Constitution will transform from informal to formal. Right now I could tell you my pet amendment and you could tell me your pet amendment and we could begin an informal discussion on the merits of each. All the convention call does is make the discussion of amendments formal (instead of informal), and directed to a conclusion--either an amendment will attain 75% approval or not. Are you afraid to formally discuss amendments to the Constitution?

If a human is in a building and they smell smoke, does it matter if they are Republican or Democrat or something else? Of course not, any human, regardless of political affiliation/philosophy, will stop what they're doing to determine where the smell of smoke is coming from. This metaphor renders the One State/One Vote concerns irrational, and arguments against it invalid, because we're not talking about 50% approval determining a civil or structural change in governance, we're talking about 75% approval, which again, means that partisan proposals, ipso facto, are DOA, which renders the rubric of one party winning out over another in this process inapplicable. 75% approval supersedes party politics. 75% approval also renders irrational any concerns that a reactionary moment in society, or a demagogue, will lead us to our demise, and if such threatened to, the idea or movement will follow the way of the 20th Amendment--yes, we actually have historic proof that practical politics will prevail on a national scale--Americans recognized prohibition didn't work and in due time disposed of it the way a village would dispose of anything else that didn't work. Today, with society more polarized than ever (due to an era of fake news about fake news), practical politics will again guarantee that nothing even slightly questionable will have a chance of 75% approval.

To think that nothing will have altered in our national consciousness between the time the convention is called and the time it adjourns lacks sense because by the time we get to the ratification process, we'll have already been engaged in formal discussion for months, which will have touched on how politicians have treated constituents in the past, which means by that point legislators will be as receptive as all get out. We won't come out of the Article V Convention only to find state legislators couldn't care less what the people of their state think. No, by that time in the process legislators will be standing at attention like a private at boot camp.

As to the contention that special interests will set upon the convention and bamboozle the nation? I doubt the lobbyists of K Street will want to advocate, in public, before the nation, what they currently get away with at DC restaurant tables, just as no criminal will want to attend a public discussion about how to stop criminals from committing crime. And even if they did attend, and attempted to sabotage the discussion with ineffectual proposals, such proposals would never withstand the crucible of ratification. What can any special interest group propose that roughly 8 out of 10 Americans are going to agree on?

As to the argument that because the 27th Amendment was ratified after almost two hundred years on record, and how this shows the convention could propose a bunch of monsters that could somehow come back years later to destroy our government (which if you believe the Constitution is a law for Americans [and it does state that's what it is], then you know our government is already destroyed in the sense that, as has been mathematically proven, it no longer represents the people), when the reason the 27th was ratified is 1) there was no law prohibiting it from being so ratified, and 2) it was still just as good of an idea as it was when first proposed--not because it somehow snuck in the Constitution as an odd accident. When it came to light, none of the states already signed on questioned their initial consensus--none rescinded their previous application--and the remaining states required agreed that preventing politicians from increasing their salary while in session was an acceptable addition to our high law.

We know this: either there will be requisite consensus for ratification of a 28th Amendment, or there will not. If there isn't, then in one fell swoop we'll have carried out a formal process in civics, and one, two, three generations will become re-educated about what the Constitution says, and why it says what it does.

Finally--sorry to break it to you--because all political polls for decades indicate only electoral reform has any chance of garnering 75% approval, then boring old electoral reform is all we're going to get. Something simple, like--All state and federal elections for public office shall be standardized and publicly funded.

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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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