Category Archives: Article V

Utah Legislature Watch: Some Conservatives don’t like Con-cons

Utah State Capitol in 2002

The Utah Capitol (Image via Wikipedia)

Even after the rise and vengeance of the Tea Party in elections last November, the political right still does not agree on how to carry out its goals. One of the oft shouted stated calls by activists, shrinking federal power and returning to a balance of power between the states and federal government (see also “federalism”), is a source of particular debate, discussion, and disagreement.

Yesterday, blogger and Utah state Rep.Holly Richardson (R, Pleasant Grove) wrote on her blog, and in a guest post here, asking whether it isn’t time for Article V amendments to the Constitution to rein in the growth of federal powers vis-à-vis the states.  In raising the possibility of a limited convention for specific constitutional amendments, she argued that

If the Founding Fathers were truly concerned with the overgrowth of the federal government – and certainly all evidence points to that as a primary concern – then the inclusion of Article V is not an accident. It was meant to be one more check by the states on the federal government.

Her post was timed to coincide with Utah state Rep. Brad Daw’s (R-Orem) proposal that the Utah legislature call for a national convention to write a balanced budget amendment.  Such an amendment would make it impossible for the federal debt limit to be raised.

Rep. Daw’s bill failed to get out of committee in a 5-5 vote that had conservative Republicans joining with Democrats to kill it. Ironic. According to the Salt Lake Tribune

[…] various conservative groups, including the Eagle Forum, the John Birch Society, the 9/12 Project and others argued that calling a constitutional convention would open a Pandora’s Box and any amendment could be on the table.

As always, politics makes strange bedfellows.

A similar proposal by Rep. Dave Clark (R-Santa Clara), which would call for a constitutional convention for an amendment that would allow states to repeal federal laws, was tabled when he saw the vote on Rep. Daw’s bill. Rep. Clark’s proposal is closely patterned after and intended to work with a proposal sponsored by Congressman Rob Bishop (R-Utah 1)  in the U.S. House of Representatives.

A sampling of the comments on Holly’s blog indicates a shadow of the fervor the conservative right feels about the potential for damage in an Article V convention, limited in scope, that morphs into a constitutional convention, a.k.a. a “con-con,” that is not limited in scope.

David Kyle said

I’m totally and very strongly against calling any type of Con-Con. What a mistake it would be to think that the very people that don’t obey our current Constitution would be entrusted to set the new rules, write a new one or make amendments in a vein attempt to fix it?!

Rod Mann worried about a convention going rogue:

At a Constitutional Convention is there any limit to the number of amendments that can be proposed? Answer No
– Is there a limit to the scope of these amendments? Answer No
– Do we think that the attendees representing the states will be anywhere near as qualified to discuss constitutional issues, theories of government, … as the attendees of the original convention. My answer not likely
– Who will end up attending the convention? The most qualified or the best connected? My answer in general the least qualified and best connected

…and so on. (Oh, and there was talk of nullification, too, an idea that should have died with the institution of slavery in the 1860s…but that’s for another day and another post.)

One colleague of mine, in a more rational moment of the debate, indicated that such a resort–to amendment and convention–was beyond what was necessary. We already have the resources in our current legal structure, he argued, and those ought to be used first before resort to amending the document that governs the nation.

Daniel of St. Thomas Jenifer

Image via Wikipedia

He may have a point. But so does Holly. The federal constitution was drafted to include checks and balances, including multiple methods amendment. Each method was to give the states a way to check the power of the federal government, as well as for federal representatives of the people to check states against tyranny of their people. (That’s right…in this day and age, no one seems to remember that it is the federal government that has dragged the states kicking and screaming into the modern age by requiring more rights be allowed to their citizens.) No one wants a convention that will ripe apart the federal constitution; at the same time, amending to the constitution was in line with what the Founders anticipated by including Article V within its frame-work.

At this time, I am not ready to support that the time has come for amendment to the federal constitution by way of either an Article V convention or a con-con; however, I do think that the amendment process should be stripped of stigma and the fear that prevents a rational discussion. Government works best when citizens are educated, informed, engaged in improving it. Discussion about the relevant avenues of making those improvements should include amendment  and, yes, even constitutional conventions.

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Guest Post: Holly Richardson’s “Article V Convention vs Con-Con”

By hollyonthehill

Arguments against a Constitutional Convention (also called a Con-Con) are plentiful and rightly so. The last Constitutional Convention resulted in a new government. Opening up the Constitution could be like opening Pandora’s box.

First page of Constitution of the United States

Image via Wikipedia

But.

What happens with a federal government that is out of control? Representative Ken Ivory says that the distinct line between the federal government and states’ rights is the issue of our time. I believe it’s certainly in the top 2 or 3 issues. Yet how many timeshave the states ceded their power to the federal government. How many times have we rolled over, thrown up our hands and said there is nothing we can do? Or even worse, how many times have states gone to the federal government and asked for handouts, willingly accepting the strings that come with it. In the last year or two, we have seen what happens when “we the people” get fed up with the government. In fact, political pundit LaVar Webb points out:

In the business world, we have often seen the forces of “disruptive innovation” at work. Harvard Business Professor Clayton Christensen has written best-selling books about the inevitable process of large, bureaucratic, top-down, slow-moving businesses or industries being “disrupted” by small, nimble, innovative competitors using the latest technologies. In business, this process, while deadly for lethargic firms, eventually produces better products, superior customer service, and an upward spiral in efficiency, productivity, wealth creation, and quality of life.

This raises an intriguing question: Could the beneficial process of disruptive innovation work in government? Government obviously isn’t subject to the same competitive forces as are private businesses. Government operates by force and coercion, imposing its will by law and regulation, not according to market needs or consumer demand.

State legislatures have the right to tell the federal government to back off. They can do it through (mostly meaningless) resolutions. They can do it through bills that slap the feds in the face. They can do it through nullification attempts. They can also call for an Article V convention.

Article V reads as follows:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

On a state level, there are a couple of ways to change the state Constitution. The legislature can pass a bill by 2/3 in both the House and the Senate, then have it ratified by popular vote. Or, we can have a citizen’s initiative where a certain percentage of the population drives the movement to get an amendment put on the ballot. On the federal level, we can have an amendment passed (such as the Balanced Budget Amendment currently being talked about in DC), OR, we could have a Con-Con, OR we could have a state-called amendment convention.

If the Founding Fathers were truly concerned with the overgrowth of the federal government – and certainly all evidence points to that as a primary concern – then the inclusion of Article V is not an accident. It was meant to be one more check by the states on the federal government.

By Holly Richardson

Look at DC right now and tell me that we don’t already have a runaway government that is acting outside the bounds of their Constitutional authority. We have TARP, we have Obamacare shoved down our throats, we have unelected, powerful czars and we have lame duck sessions where bills like S510 were passed on a voice vote late in the evening, in spite of significant opposition. In addition, we have secretaries – like Ken Salazar, of the Department of the Interior – who have proclaimed that he and his department can now circumvent the Constitution in declaring wild lands and departments like the EPA who regulate by rule when they can’t get the laws they want passed by Congress.

As someone who loves the Constitution, and who loves this country, I am tired of rolling over and letting the federal government trample our rights. I believe we SHOULD use the tools the Founding Fathers gave us to push back against this egregious federal over-reach and for this reason, I support the states banding together and proposing an Article V amendment convention.

Reprinted with permission from Utah State Representative Holly Richardson. Find the original post here.