At the close of my previous post, I posed the question of why, if it is clear that Congress must call a convention, they haven’t done so. Why haven’t the other branches done anything to force the hand of Congress?
In the case of the other branches, it seems to be that the Supreme Court ruled that Congress has sole power and jurisdiction over the amendment process. That may be the case for those amendments proposed by Congress; they can attach whatever restrictions or conditions they desire (e.g., a seven year time limit for ratification). But it is clear that the Congress must call a convention once two thirds of the states request it. There is no discretion allowed.
Be that as it may, the executive branch has no power in this. There doesn’t seem to be any provision for congressional refusal to carry out one of its responsibilities. There is no way to impeach the entire legislature. Perhaps the Founders thought that we would remain a federation of republicans, and hold our representatives accountable at the polls. At any rate, the Federal Government appears to want nothing to do with this.
What about the states? I believe that the state legislatures have the best chance for securing a hearing and debate on this. They have legal standing: it is their applications that are being “micturated upon,” as the Big Lebowski put it.
I think it is likely that state legislators misunderstand the point of an Article 5 Convention. Most people think it would be a constitutional convention. But it is not. It is a convention to propose amendments. Even if the convention proposed one “super amendment” to replace entire Constitution, 38 states would need to ratify it. That ain’t gonna happen! Nevertheless, that’s the propaganda: if you are in favor of an Article 5 Amendment Convention, you must want to throw out the entire Constitution! (I suggest you visit the Friends Of The Article 5 Convention website for more detailed background on this.)
There may also be some fear of Federal power. There are some Supreme Court cases seem to say that Congress can order the dissolution, by military force if necessary, of state legislatures that oppose the ratification of amendments (historically, the 14th Amendment). Again, I refer you to the Friends Of The Article 5 Convention website for more information and analysis.
In the meantime, I urge you to write your state legislators and members of your state’s Congressional delegation. Explain to them that Congress is ignoring its duty, and ask where they stand on an Article 5 Convention. I truly think that the states are where we will find a way out of this.
Finally, what amendments would I propose? I have a few, some needing work by wordsmiths more skilled than I. Here they are:
- Repeal of the 16th amendment
- Repeal of the 17th amendment
- Removal of the “general welfare” clause from Article 1 Section 8. Add language making it clear that Congress’s power is limited to those enumerated in Article 1 Section 8.
- Clarification of the commerce clause to severely restrict the power of the federal government.
- An amendment stating that states have the right and power to secede from the union. Any state so seceding may not apply for readmission for 75 years. (I think that the states always have the right to secede, certainly under the 10th amendment. But our understanding of this has been polluted by the historic tie of secession to slavery. It is best to state it explicitly.)
- An act of Congress or decision of the Supreme Court can be nullified the decision of two thirds of the state legislatures.
- Provide for a legislative veto over executive orders.
That’s my list. What’s on yours?