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Friendly Warning: COS before the Virginia General Assembly (Again)!

I dearly wish I did not have to be so negative about the Article V Convention of States issue. It would be nice if the states and people could take back their founding document and restore the Republic through a COS.

But the risk is too great.

And I see my delegate, Chris Peace, is introducing one of the bills at the request of a constituent and it is an interesting document. (The other bill is another delegate I know well: Sam Rasoul and it seeks to overthrow Buckley v. Valeo and Citizens United by asking for a federal constitutional amendment to say money in campaigns is not speech and that corporations would have no rights under the Fourteenth Amendment (that has been the law since about 1875 or so!); many of the criticisms of the Peace resolution apply equally to the Rasoul amendment.)

Here are the operative paragraphs:

The application to the Congress of the United States to call an amendment convention of the states pursuant to Article V of the United States Constitution confers no power to Congress other than the power to call such a convention;

2. Congress does not have the power or authority to determine any rules for the governing of an amendment convention of the states called pursuant to Article V of the United States Constitution. Congress does not have the power to set the number of delegates to be sent by any state to such a convention, nor does it have the power to name delegates to such a convention. The power to name delegates remains exclusively within the authority of the legislatures of the several states;

3. The vote at an amendment convention of the states must be on the basis of one state, one vote;

4. An amendment convention of the states convened pursuant to this application is limited to consideration of the topics specified herein and no other. This application is made with the express understanding that an amendment that in any way seeks to amend, modify, or repeal any provision of the Bill of Rights is not authorized for consideration at any stage. This application is void ab initio if ever used at any stage to consider any change to any provision of the Bill of Rights; and

5. The General Assembly of the Commonwealth of Virginia may provide further instructions to its delegates and may recall its delegates at any time for a breach of a duty or a violation of the instructions provided; and, be it

I am not sure where to start. First, I do not think the states can bind Congress as to how many delegates to the Convention or as to what subjects the Convention can discuss. Now I fully realize Publius Huldah is controversial (The abolitionists like William Lloyd Garrison were seen as controversial too!) but I was honored to let her guest post here at Virginia Right on this issue (I hat tip her for this info and can go here for more fascinating material) but I see that this column in The Hill by a law professor at Georgetown and it essentially says as to this COS/Article V Convention virtually the same conclusions as Huldah.

Nothing in Article V, or anywhere else in the Constitution, authorizes Congress, state legislatures, or anyone else to limit the agenda of an Article V convention. And even if they did, the Supreme Court has made clear that the process of amending the Constitution is a “political question” into which the courts would not intervene. Once the delegates convene, they are answerable only to themselves. The product that emerges from an Article V convention could be radically different from what those asking it to be called may have envisioned, just as the Philadelphia convention of 1787 departed sharply from its mandate to propose amendments to the Articles of Confederation.

COSP’s proposed delegate-constraining laws will not work for several reasons.  First, nothing in the Constitution gives state legislatures the power to control their states’ delegates any more than state legislatures can control their states’ Members of Congress. Once selected, delegates to an Article V convention become federal officials with authority derived from Article V, not from the states. In Bush v. Palm Beach County Canvassing Bd., the U.S. Supreme Court held that, when state officials derive their powers from the U.S. Constitution, federal law can constrain state officials’ actions.

I have also written about the dangers of the COS, including the very real possibility of secession. I also think the ab initio (as if it had never been made law) provision is useless as rescission of ratification would be futile and likewise the recall of delegates is not likely to be enforceable, either.

The attempt of the left to pass the ERA and this scary article in the Atlantic about a proposed alteration to the unamendable provision that ensures each state has the same number of senators shows what lengths people will go to get what they want. (Here is the Federalist’s response.)

Nothing is beyond the potential of potential Constitution-rewriters. The Republic can only be restored by continual education of the people as to their rights.

Here is the flyer Huldah wrote on the dangers of the COS peculiar to Virginia. Use as you see fit.

Here are the emails of all 100 state delegates in this session:

House Republicans (51) – Dear Delegate:

[email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected],

[email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected]

House Democrats (49) – Dear Delegate:

[email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected]ia.gov, [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected][email protected]

[email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected]

Remember be polite and respectful.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

8 Responses to “Friendly Warning: COS before the Virginia General Assembly (Again)!”

  1. Rita Dunaway says:

    With all due respect, I would implore you to educate yourself more about Article V. The new, meticulously-researched book by Prof. Rob Natelson, “The Law of Article V” is an excellent place to start.

    Also, I must point out that the portions of the resolution you excerpted in your post are NOT the “operative” portions of the resolution. They are what is referred to as “Reservations, Understandings and Declarations,” drafted by Convention of States Co-Founder Michael Farris, who is now the president of Alliance Defending Freedom.

    • Russell Beyer says:

      I know how you may feel. I felt that way myself, but let me tell you what I have found.

      First any convention of states is a legislative deliberative body with limited authority….it is not like the conventions of political parties. There have been over thirty conventions of states for various matters such as trade, water rights, etc. So there is history, logic, and the precedence of other meetings of the states for other purposes.

      Most legislative bodies use Mason’s rules of order, which states that they must have the authority to act (Principle #1), and may not break federal, state, or local laws in doing so (Principle #10). : “The group must be so constituted and endowed that it has the power and authority that it purports to exercise. A purported action must be within the power of the organization or the vote is ineffective.” -Mason’s Manual of Legislative Procedures. Sec 43-1

      Article V itself says: “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….”

      I think that it is pretty clear that they may propose amendments, but going beyond is clearly out of order.

      Don’t be afraid of a tool that the Framers gave to us to control our government. There is nothing that 3/4 of the states might legally ratify that scares me. Congress is a far greater danger!

      • Sandy Sanders
        Twitter:
        says:

        Russell: Thanks for coming by and for your civility. I hope fervently that you are right about the COS. But the left does not play fair and they will try to exceed its brief regardless of Mason’s Manual or any state laws.

        I do agree that 3/4 of the states are not likely to pass any really bad amendments and Congress passes all sorts of bad laws all the time.

        Thanks again for reading.

        Sandy

    • Sandy Sanders
      Twitter:
      says:

      Rita:

      Thanks for coming by. The operative paragraphs are the ones that do or not do something. That is exactly what those are. Now I have immense respect for Michael Farris, in fact I voted for him for LG way back long ago, but these reservations, etc. are legally worthless.

      I would commend my thought experiment to you in my post: http://www.varight.com/news/maybe-but-probably-not-the-last-word-on-the-convention-of-states/

      Yes we know what can happen in a COS – it was done in 1787 – a runaway convention – thank God (I mean this literally!) we had men who loved their country and liberty then. That is why we have a Constitution.

      I would read Publius Huldah’s writings on the COS. Thanks again Rita for coming by and caring enough to post and for your civility too.

      Sandy

      • Rita Dunaway says:

        Sandy,

        Putting aside for the moment the issue of “operative language” and the reservations in the resolution, I would respectfully ask you to reconsider your conclusion that the 1787 convention was a “runaway.”

        Many have drawn that conclusion from the resolution issued by the Congress, which described the purpose of the convention as being to “solely revise” the Articles of Confederation. But, of course, under the Articles, Congress had no authority whatsoever to call or limit a convention of the states. The states alone retained that power. And a reading of the state legislatures’ instructions to their commissioners reveals that the delegations (legal agents of the state legislatures) did exactly what they were instructed to do.

        All the information is chronicled here, in a recent Harvard Law Review article by Michael Farris: http://www.harvard-jlpp.com/wp-content/uploads/2017/03/Farris_FINAL.pdf

  2. Russell Beyer says:

    I respectfully must disagree with your assertion that the 1787 Convention “ran away”! If it were so, why have we been using it for hundreds of years?

    (I know what you are thinking….I would agree that we HAVE left the rails of the original Constitution!) Witness the 3,000 page Annotated Constitution…available from the Government Printing Office. It’s the Constitution being followed today…the original document with all the SCOTUS “interpretations” and modifications made for the last 100 years.

    Credit where it is due….portions of the following were borrowed from writings of Gary Porter and David Dietrich

    It’s important to note, that the commissions to the delegates of the Philadelphia Convention are in the National Archives. We know what the commissioners were told to do. And we know that the Congress saw the need for change and approved before they met.

    Once written, the states ratified the document.

    The Philadelphia Convention of States that wrote the Constitution was properly called and authorized. They idea that it ran away is a myth. The Philadelphia Convention was actually called for on 14 September 1786 by the delegates of the Annapolis Convention.

    Their call read:

    “Your Commissioners, with the most respectful deference, beg leave to suggest their unanimous conviction, that it may essentially tend to advance the interests of the union, if the States, by whom they have been respectively delegated, would themselves concur, and use their endeavours to procure the concurrence of the other States, in the appointment of Commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every State, will effectually provide for the same.”

    http://avalon.law.yale.edu/18th_century/annapoli.asp

    By the time Congress got around to issuing their “non-binding” endorsement (they had no real power to call the convention), seven of the 12 states that responded had already chosen their delegates.

    On 21 February 1787, when Congress finally passed and forwarded their non-binding endorsement of the convention idea, it read in part:

    “Resolved, That in the opinion of Congress, it is expedient, that on the second Monday in May next, a Convention of Delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation…” This is where those opposed to a convention normally stop quoting, and you will see why; the resolution goes on to say: ”and reporting to Congress and the several Legislatures, such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution adequate to the exigencies of Government, and the preservation of the Union.”

    There was only one real requirement to be met in the initial call and the seven which immediately followed it: render the federal Constitution adequate to the (needs) of Government.

    What do those words mean? “Render” (i.e., change) the “federal Constitution,”[5] to make it “adequate to the (needs) of the Union” (or “the needs of government and the preservation of the Union”). In sum: change the Articles in such a way that the Union is preserved.

    And in those days I understand that the word “constitution” was also used to mean the process of government….not just a piece of parchment as we think of it today. I believe that while Congress may have preferred revision, their overall desire was to preserve the union. They said to “fix it”. With changes to be agreed to in Congress and confirmed by the states. That all happened!

    Professor Natelson’s latest book is a legal treatise on Article V: “The Law of Article V: State Initiation of Constitutional Amendments”

  3. Sue Long
    Twitter:
    says:

    Thank you, Sandy, for pointing out the pitfalls of a constitutional convention aka Convention of States. Even if the result were something worthwhile, why think that the legislators who fail to adhere to the Constitution we have now, would magically overnight, abide by a new one? The Constitution is not the problem; changing it is not the solution.

  4. I think anyone who wants the answer to the “Did the 1787 Convention run away by forming a new Constitution?” can look at prior blog posts. Or history. There was probably some disinformation set out that the 1787 Convention was to make changes when people knew better. However, it was on paper a runaway convention. I also feel liberals and some RINOs will take over any convention today and the effect on the body politic is not one I feel comfortable championing. Thanks for the comments and their tone, all the best to all in Jesus.

    Sandy

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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