The Progressive Constitutional Juggernaut
On May 13th, 2014, a debate over the use of a Constitutionally sanctioned Article V Convention to propose amendments was held between two conservative supreme court attorneys, Michael Farris from Convention of the States who supported the convention and Andy Schlafly owner of Conservapedia and son of Phyllis Schlafly. OK, before you tune out, I hope to show you what the left is missing in the convention method to propose amendments in their own words. Andy Schlafly has exposed a weakness the left would be fools to ignore. The two attorneys have known each other a long time, and they are no strangers to the constitutional amendment process. Michael Farris worked closely with Phyllis Schlafly to defeat the Equal Rights Amendment when Andy was a teenager. They felt comfortable with each other and spoke freely. Andy Schlafly did not intend to show the left how to become a constitutional juggernaut.
Typically, I stress a nonpartisan approach to solving the problems today. But, when the cards are tipped to this degree by conservative think tank members, I must point out glaring strategic advantages for the progressive constitutional amendment efforts.
First take a look at excepts from Andy Schlafly’s side of the debate.
Yes, of course we progressives want to limit the free speech of foreign nationals and multi-national corporations in our government. It ought to be against the law to corrupt Congress from Pakistan. I would think the conservatives would stand with us on that idea. All Americans should want to have representation in exchange for their taxation. We have that right as constituents. What claim to constituency does Pakistan have on my Senators?
If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders.
Dissenting Opinion in Citizens United
Schlafly wants us to believe that if Congress is so corrupt and inept, we won’t have anyone better to put the interests of the nation first. No one considers the members of Congress to be of , “high caliber” shall we say? Delegates won’t seek re-election, Congress will. The best intentioned member of Congress will walk in to his or her first day of work and begin raising money for the next campaign. Americans will rise to the occasion as we have always done in the past. Don’t count us out.
Andy Schlafly takes the position that the first convention was a miracle but another attempt to assemble will be a nightmare. First, he claims we do not have the right people; there are “no George Washingtons” around today. I will simply say, speak for yourself. America is full of people with strong character and certainly more than what we see in D.C. It is possible Andy Schlafly has made poor choices in his associations and has projected those qualities on every American, but I digress.
Second, he states the founding fathers fought together in the Revolutionary War so they get along better than we do today. This is not exactly true. The people in different states really didn’t care much for each other at all. The differences between the states on slavery alone were a much wider divide than we have now. At the time they almost regarded each state as a separate nation and there were strong feelings of xenophobia expressed in the original Constitutional Convention debates. Today we agree with each other; there are systemic problems in the US and we need to fix them. There is no massive divide there. Conservatives want to control our spending. As a matter of fact, so do I. Let’s see what we can work out as Americans, outside of Congress and D.C. favor trading.
Third, Andy Schlafly takes the position that the Convention will be covered by the media so it cannot have a good outcome. It seems that he would favor backroom Constitutional Amendments. That is called the Supreme Court. We already have that. This court has misread the Constitution to such a degree that we need to clarify the language and define the terms they have twisted to please their corporate benefactors, I mean former employers.
As Thomas Jefferson said, “The Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
Andy Schlafly also claims that Harry Reid will conduct the convention from the Senate. The Convention would have an equal power of Congress to deliberate and propose amendments.
Judge Thomas Brennan, former Chief Justice of the Michigan Supreme Court would disagree:
Congress has no right to make convention rules. I would add that state legislatures have no right to make convention rules either. A Convention, by tradition and law is sui juris. It determines the credentials of its participants, sets its own agenda, makes its own rules, and decides when to adjourn sine die.
The Article V convention, however it comes about, will be judged on its product. It will succeed if, and only if, the amendments which come from it are able to command a consensus of the American people.
Lastly Andy Schlafly says that all of us on the left want to have the convention because we have a mountain of things we want to get passed. I wish that were true. I wouldn’t need to shine a light on this presentation to get the left focused on this method. Then he admits that if a convention was called the media will have a field day with it and who is going to stop the left from passing all kind of amendments? “The momentum of these amendments will be impossible to stop.”
So are we going to continue to play pat-a-cake from the left or do we want to put points on the board? Think of the events over the last two months. We lost net neutrality, separation of church and state in Greece v. Galloway, and bald faced plutocracy granted in McCutcheon v. FEC. We are losing ground and in broader strokes than just last year. We have no choice but to use any legal means to make change, before all the legal methods are no longer available to us. The right to just protest the loss of voting rights is now being restricted in the upcoming Moral Mondays Marches. North Carolina will soon be closed on Mondays. We need to push back hard and immediately.
A close friend of mine repeatedly tells me we need a movement, but look around. We have the most revolutionary period in human history happening around the world. Isn’t the momentum Andy Schlafly fears the kind of movement in ratification that you are looking for? The chronology of events does not always have to take place in the order we originally perceived they should. These movements are campaigns to accomplish goals.
The left has been trying to stop one thing after another on defense for too long. When a basketball team starts making a run on the other team, the coach needs to call time out. From the peanut galley I must yell, “TIME OUT already.” Strategy: We the People need an offense. If no one has any better solution, the nay-saying is not helpful. Please do not get “hopey changey” about Democrats winning the US House in November. They won’t fix the system that feeds their power over the GOP competition.
Andy Schlafly is not alone in his assessment of the convention potential for the left. The GOP website posts a resolution to oppose Article V of the Constitution as a party.
WHEREAS, former U.S. Supreme Court Chief Justice Warren Burger concluded that there is no effective way to limit or muzzle the actions of a Constitutional Convention after it is convened; and,
WHEREAS, a Constitutional Convention would attract a multitude of individuals and special interest groups with agendas that would alter our Constitution beyond recognition; and,
WHEREAS, well known Democrat members of the US Congress are currently advocating a Constitutional Convention to introduce a number of amendments that would enshrine and effectuate their liberal agenda; and
So, either there are merits to the arguments of Andy Schlafly, or he is a complete imbecile. Having never met the man, I will give him the benefit of the doubt as a Supreme Court litigator that he must have some degree of intellect. Either way, the likelihood of some constitutional success for the left in a convention is rife with possibilities. It is possible we might get on a roll. It is equally possible the conservatives will self-destruct over issues like the Balanced Budget Amendment as we heard from Andy Schlafly. How can anyone on the left walk away from the mountain of opportunity that he envisions, even if only a few amendments will actually pan out?
The truth is, an Article V Constitutional Convention will not be a liberal panacea. The farther you get from the middle, the less likely things have a chance to pass. What Andy sees as a liberal amendment is actually a popular American amendment. However, if we only passed something like a national initiative process, wouldn’t that be a major step in the right direction? The act of assembling will forever change the dynamic between the people and their government because they will know we can do it again. This must happen.
The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, ’till changed by an explicit and authentic act of the whole People is sacredly obligatory upon all.
George Washington, Farewell Address, September 19, 1796
Excerpts from Michael Farris’ side of the debate:
Michael Farris’ argument is that there are two Constitutions, one written and the other is the collective interpretations of the Supreme Court. I would go a step farther and say that even cites have trumped the U.S. Constitution’s guarantee to free speech. We have seen our police defend the homeland’s insecurities rather than securing our homeland.
He points out that the founders were more fearful of a federal government than they were of states holding a convention. There were widespread fears of a Congress and the Anti-federalists of the day would have never stood for an unchecked federal government. Article V was the only fail safe beyond the normal system of checks and balances in the Constitution. The duty to defend the Constitution does not imply that we take actions that would be considered illegal. We have a duty to use any and all legal action to defend our Constitution from the encroachments of an overreaching government.
Michael Farris also says we should not wait too long when tyranny is at our doorstep. The legacy he hopes to leave his children is a self-governing nation. I think with the recent revelations from NASA regarding rising sea levels, dying reef systems, a GMO agriculture monopoly, perpetual contamination and assault on our water supplies, and ever hazier air conditions with our carbon count over 400 parts per million; I have to again find myself on the same side as a conservative I do not agree with on specific solutions. Yet we have complete agreement that systemic problems exist.
These common sense points are exactly where the people of this country need find common ground. The details regarding how to do it can be sorted out in a convention. The reason to go to a convention is not to rubber stamp the solutions we have already worked out, it is where we legally address our constitutional grievances outside of the source of the problem.
“The main problem with state applications specifying exact language is the objection that a convention called to consider a predetermined amendment would, in effect, become part of the ratifying process. …an attempt by the various State legislatures to force Congress to call a convention which can only act mechanically to approve or disapprove a specific amendment. The attempt is to make the convention merely an initial step in the ratifying process instead of a deliberative meeting to seek out solutions to a problem. The word ‘propose’ cannot be stretched to mean ‘ratify’. The Congress cannot properly accept and become part of any prepackaged effort to short cut the amendment process.”
~ Senator Robert F Kennedy
He is not afraid of us, we are not afraid of him. We are neighbors and fellow patriots who just don’t agree on everything. I am willing to talk to him about solving our problems. I think there are many people like us who are ready to put our nation first instead of our personal agendas. Our nation is officially an oligarchy. It is possible it’s already too late.
Watch the entire Constitutional Debate with Michael Farris and Andy Schlafly here: