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Is a US Constitutional Convention Imminent?

The Constitution belongs to We the People, not state legislatures.

Yes, it seems so, but don’t panic. It is time for Americans to take a break from election hype and become acquainted with The Assembly of State Legislatures and how their plans will change the landscape of US politics for the next 100 years or more.

In late 2013 the Convention of States political group led by radio show host Mark Levin, Tea Party Patriots founder Mark Meckler, and Supreme Court litigator Michael Farris invited various state legislative leaders to a conference at the Mt. Vernon to discuss the Article V Convention to propose amendment to the US Constitution. Convention of States managed to get a few states to pass their application for an Article V Convention but putting all of these legislative leaders in the same room had unintended results for Convention of States. Now this group of legislators formed their own entity calling it the Assembly of State Legislatures.

“This Assembly hereby resolves that the following items should be addressed in the rules and procedures of any Article V convention for proposing amendments:

Category: Rules and Procedures

  • Process of delegate recall, including state authority
  • Deliberative authority of body after a call is made (open, subject matter, single amendment)
  • Number of votes required for passage of an amendment (simple majority, two-thirds, three-fourths)
  • Process around one state one vote precedent
  • Speaking rights of delegates
  • Convention stance on the state delegate selection process
  • Rules creation, revision and adoption process
  • Committee structure and their process for discussion, voting and communicating to the body
  • Selection, term and responsibilities of officers
  • Convening times
  • Verbiage for rules continuity clause that would be adopted and carried into the next meeting of the body
  • Process for drafting of amendment language, if called under Article V
  • Process of transmission to states of any passed amendment

Category: Planning and Communication

  • Process of admittance and credentials required
  • Security necessity and staffing
  • Oath of office necessity/language for delegates
  • Will meetings be open or closed, and if open how communicated
  • Method of recording proceedings of full body and committees
  • Time and location selection process of Convention

Category: Judiciary

  • Process to ensure that the Compact Clause in Article 1 Section 10 of the Constitution is not triggered
  • Criteria for a qualified application
  • Number of live applications that have been submitted to Congress
  • Responsibility of tracking live applications
  • Process for notifying Congress that a call must be made
  • Length of time Congress has to make a call once 34 qualified applications have been submitted
  • Legal counsel selection for drafting purposes
  • Length a state application submitted to Congress is valid
  • Length of time a convention is open for and what events would “terminate” it
  • Length of time an amendment passed to the states for ratification has before it expires
  • Length of time an amendment that has been sent to the states for ratification remains valid for the required 38 ratifications
  • Role of District of Columbia and U.S. territories

Category: Finance

  • Convention financing
  • Budget creation and communication process
  • Tracking and allocation of convention costs
  • Collection process”

The Idaho Resolution

Early this year the State of Idaho passed a resolution that mirrored my own request to the Clerk of US House and US Senate Parliamentarian for an official count and list of states that have applied for a convention in the past. Their resolution never had a single vote cast against it in either house, on the floor or committee. It was authored by a legislator from the ASL group, Sen. Nuxoll.

From private conversations with ALEC and Convention of States organizers, I understood they had no interest in reviewing past applications and they told me directly they want nothing to do with my request. Seeing the Idaho resolution was the first clue that the Assembly of State Legislatures was not being directed by these other groups but thinking for themselves and doing what they felt was right even if ALEC and Convention of States organizers have tried to point them in another direction.

Indiana Meeting

In June 2014, the group of legislators from 33 different states came together again in Indiana and agreed upon the following resolution:

Section 1: That “The Mount Vernon Assembly” shall hereafter be known as “The Assembly of State Legislatures.”

Section 2: That the focus of The Assembly of State Legislatures’ efforts moving forward is to draft proposed rules and procedures or any provisions as shall appear to them necessary, being a power not delegated to Congress but reserved to the States, under which an Article V Convention for proposing amendments would function.

Section 3: That the work product of The Assembly of State Legislatures will serve as recommendations for a Convention for proposing amendments called by Congress, thus allowing the amending convention to focus on drafting language of an amendment(s) instead of the administrative process; and

Section 4: That the Executive Committee of The Assembly of State Legislatures is hereby instructed to transmit a formal invitation to the legislative leaders of the fifty States, requesting a bi-partisan delegation of at least three currently serving members of their respective legislative bodies to be present from each State at the next planning meeting in early December, 2014. (The date and site to be determined by the Executive Committee based on the input from the planning subcommittee.)

Rare video of Assembly of State Legislatures in action

Upcoming Judiciary Meeting November 2014

I was fortunate to receive information from retired Chief Justice of the Michigan Supreme Court, Thomas E. Brennan. Judge Brennan recently submitted documents (1 & 2at the request of the Judiciary Committee of the Assembly of State Legislatures.

In one of the documents submitted to the committee it read:

If my counsel is to be of any value to this committee, let it be this: the legislatures of the several states have the power and the right, both legally and historically, to call an Article V convention for the purpose of proposing amendments to the federal constitution.

I submit this little known fact: the convention of 1787 was not actually called by the Congress of the United States. Calling a convention means setting the time, the place, and the purpose and notifying the invitees. All of that was done by the legislature of the Commonwealth of Virginia months before the Congress ever considered the matter.

Judge Thomas E. Brennan

Six of the thirteen original states answered Virginia’s call and had already selected delegates to meet in Philadelphia in May of 1787 before Congress took the matter up in February of that year. Congress did no more than confirm the time, place and purpose, chosen by Virginia and agreed to by five other states.The debate over whether Congress or the State Legislatures is empowered to establish the rules under which an Article V convention would operate is a fool’s errand. James Madison expressed concern that the details of organizing the convention were not spelled out in the constitution. The fact is that the delegates in Philadelphia did not specify such details for the simple reason that they recognized the autonomy of a convention. They were seated at a convention. They knew that a convention is sui juris; that it makes its own rules, that it sets its own agenda. That is precisely what they had done in Philadelphia, and that is precisely what they expected and intended an Article V convention to do.

An Article V convention is a convention to propose amendments to the United States Constitution. That Constitution, in its own words, was written by the People of the several states. The call to convention issued by Virginia and echoed by Congress, was a call to the states to send delegates who would represent their people.
~  Thomas E. Brennan

December 2014

The next meeting will take place on December 8th & 9th at the Naval Heritage Center in Washington D.C. All of the committee work for rule making has been completed and the state legislators are going to dot the I’s and cross the T’s leaving only one thing left to do, call a convention by state legislatures.

I know in section 3 of the last resolution is says, “Convention for proposing amendments called by Congress”. However that is not the plan.
As quoted by the PR NEWSWIRE, “The federal government has exceeded the bounds placed by the Framers of the Constitution, and it’s time for the States to exert their authority by calling a Convention to propose Amendments pursuant to the authority granted to them in Article V,” said Mark Meckler, of the Convention of States project.

They do intend to call a convention by state legislatures and it will be a Constitutional Convention not governed by the limitations of Article V. An article V convention can only be called by Congress and may only propose amendments. None of those amendments may disenfranchise a state in the U.S. Senate without that state’s permission. A Constitutional Convention of a quorum of states may propose an entirely new Constitution if it wishes. So far that is not on the horizon. The rhetoric of the legislators is more inline with preserving the integrity of the Constitution while examining how to limit the federal budget and overturn the Citizen’s United ruling.  However it is extremely important to note the distinction that they are using Article V powers to create something new outside the Constitution’s instruction.

This constitutional convention is extra-constitutional, not illegal.  There is no law that would forbid states from assembling, however they are not allowed to call an Article V Convention which is a federal function specifically called by Congress.  In fact, it is possible that if the Assembly of State Legislatures manages to attract 34 states and those delegates from states have the application for an Article V Convention from the legislatures transmitted to Congress and applications in hand, it would be obvious to the world that the two-thirds requirement in Article V of the Constitution is met and Congress is obligated to call an Article V  Convention. The ASL would not have to disband, the two conventions may take place simultaneously.

What do We the People need to do?

A convention will be announced by the Assembly of State legislatures in a matter of weeks. The invitation will go out to state to send approved delegates. It is not written in stone how states approved delegates and you have a chance to influence that in your home state now that you have advanced warning.

Myself and others would like to elect delegates that are not party members or politicians. When Iceland recently held their convention, they made an effort to prevent the parties from influencing the process. I do not look forward to a scenario where two parties have a monopoly on proposal and ratification of Constitutional Amendments.

I also believe if the legislators are going to have an exclusive convention, then the American people need to do the same to make sure that our views are articulated to the delegates of the assembly. It is not a competing convention but should provide some comfort and assistance to the delegates.  The State legislatures wish to control the method of proposal and ratification.  Ratification conventions of constituents must be required to insure the voice of the people is integrated in to their plans.

As far as other efforts to get more applications from state legislatures for a true Article V, you can give up on that idea. Once states have created a power to propose amendments themselves and the power shifts from DC to the states, the states will never ask Congress to call a convention again. We may have to play the cards in our hand from this point forward regarding Article V.

Do not fret about this convention. It may not be ideal, there may not be any ideal method of change for us. This convention will provide a chance for us to come together as Americans and bypass a corrupt Congress. Remember as Thomas Jefferson told us— ‘We in America do not have government by the majority. We have government by the majority who participate.’ 

Do not sit on your hands, this is the Constitution. Your attention is required.  Something truly wonderful is about to happen.

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Daniel Marks

Daniel Marks