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The Fully Restricted Article V Convention [1]

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Date: 2022-12-12

This solves a problem. It makes it easier to amend the United States Constitution. By avoiding the toxic tribalism engrained into our state and national legislators, it gives a voice to the will of the people.

In recent decades we can observe an increasing gap between the opinion of the voters and actions of our elected officials. This contributes to the dismal congressional approval rating that continues to hover around a 20%. Changing the rules of the game to make our legislators more responsive to public sentiment has proved to be very difficult. In the words of our Founders, Congress and our state legislators have become intransigent.

In his Farewell Address, George Washington stated that we should use the opinion of the people correct the flaws in our government. He did not say that amending the Constitution must be subject to the whims of party loyalty. Our only legal remedy to correct the flaws in our Constitution is Article V. It seems to imply that our elected representatives must take the actions necessary to adopt any new amendment. But our Declaration of Independence, giving us our guiding principles, states that it is the right of the people to alter our government.

Article V allows Congress to initiate new amendments and then seek the approval of 38 states. Obtaining the necessary super-majority in today’s highly partisan Congress is beyond reasonable expectation for most issues.

In theory, a national referendum could be used. But that is direct democracy. The concept was opposed by our Founders and may be opposed by many of today’s scholars. And it is not part of our system of laws.

States are allowed to submit applications for an Article V convention. Typically, that means that each state would use its legislature to vote on submission of the application. This method has been started many times and has been the first step in successfully amending the Constitution on several occasions. But history shows that the number of states required has never been met. The next step has always been that the political momentum of the applications process was taken up by Congress. In today’s highly partisan Congress, that momentum may be thwarted. No new amendments have been introduced and adopted for more than half a century.

The mechanics of an Article V convention are concerning. It is possible to have an ‘open’ convention. At this type of convention, any topic may be discussed. This was acceptable at the time of our Founders but is less acceptable today. Many have fears of a ‘runaway convention’ where the delegates could start the process of tearing apart constitutional norms and act in a way that the pubic does not want.

In more recent decades, the concept of a ‘limited convention’ has been used in state applications to an Article V convention. This application limits the topics of discussion to one topic. For example, the delegates may discuss term limits or balancing the budget. This ‘limited convention’ concept has proved to be a ‘red herring’ or a ‘poison pill’. Fears of a ‘runaway convention’, although many see this as unfounded, still remain. They fear that nefarious delegates will manipulate the rules. In addition, it is large undertaking to hold a national convention and it seems to be burdensome to just discuss one topic while the nation may have many separate concerns. Perhaps part of the problem is national support for a poorly defined concept. They may ask ‘what is the limitation on terms, or will a balanced budget involve a reduction in entitlement benefits?

Our current situation is challenging. The last time we failed to amend the Constitution for more than 50 years we had a civil war. Congress is intransigent on the issue of amending the Constitution. An Article V convention has never been held. A national referendum is not legal.

The only legal option is an Article V convention. We must improve its mechanics. The will of the people must be utilized. The possibility of a ‘runaway convention’ must be eliminated. The issue should be clearly defined in advance and not left up to the delegates. It must be possible to deal with more than one issue without the large-scale undertaking of a full-blown convention for each issue.

A ‘fully restricted’ Article V convention moves us in the right direction. It starts with the will of the people on an issue that could be a constitutional issue. Polls show that the majority favor change on issues like gun control, gerrymandering, health care, terms limits on Congress, or reproductive rights. In each case, Congress has the opportunity to make changes but chooses to do little or nothing (Congress is intransigent). The process begins with state ballot initiatives. It’s the will of the people not the will of our elected legislators. Exact amendment language must be used. This clearly defines the issue for all who are concerned. Completed wording in the ballot initiative eliminates the need for a full-blown convention of delegates and also prevents a ‘runaway convention’. Separate proposals may appear on a ballot.

Here are some suggested ballot initiatives:

Ban Assault Weapons

The State of Michigan shall take those steps necessary to cast its vote in favor of amending the United States Constitution with the following language and no other language “Non-military sale and use of assault weapons and other weapons of war are banned”.

Ban Gerrymandering

The state of Missouri shall take those steps necessary to cast its vote in favor of amending the United States Constitution with the following language and no other language “Fair and unbiased redistricting is mandated”.

Universal Health Care

The state of California shall take those steps necessary to cast its vote in favor of amending the United States Constitution with the following language and no other language “Universal health care is an inalienable right”.

Note that “and no other language” eliminates the possibility of a ‘runaway convention’.

These ballot initiatives may not complete the full requirements to open an Article V convention, but momentum achieved with exact language would likely cause a national conversation. That is likely to persuade other states to submit an application for the Article V convention. This process will take time but, the voice of the voters will prevail.

The actual convention would be so restricted that there would be no need for a large number of delegates or an extended time frame. The convention could last as little as a few hours.

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[1] Url: https://www.dailykos.com/stories/2022/12/12/2141425/-The-Fully-Restricted-Article-V-Convention

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