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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:

DelLAdams@house.virginia.gov, DelTAustin@house.virginia.gov, DelDBell@house.virginia.gov, DelRBell@house.virginia.gov, DelRBloxom@house.virginia.gov, DelEBrewer@house.virginia.gov, DelKByron@house.virginia.gov, DelJCampbell@house.virginia.gov, DelRCampbell@house.virginia.gov, DelMCole@house.virginia.gov, DelCCollins@house.virginia.gov, DelGDavis@house.virginia.gov, DelJEdmunds@house.virginia.gov, DelMFariss@house.virginia.gov, DelBFowler@house.virginia.gov, DelNFreitas@house.virginia.gov, DelSGarrett@house.virginia.gov, DelTGilbert@house.virginia.gov, DelCHead@house.virginia.gov, DelGHelsel@house.virginia.gov, DelKHodges@house.virginia.gov, DelTHugo@house.virginia.gov, DelRIngram@house.virginia.gov, DelCJones@house.virginia.gov, DelTKilgore@house.virginia.gov, DelBKnight@house.virginia.gov, DelSLandes@house.virginia.gov,

DelDLaRock@house.virginia.gov, DelJLeftwich@house.virginia.gov, DelDMarshall@house.virginia.gov, DelJMcGuire@house.virginia.gov, DelJMcNamara@house.virginia.gov, DelJMiyares@house.virginia.gov, DelJMorefield@house.virginia.gov, DelIOQuinn@house.virginia.gov, DelBOrrock@house.virginia.gov, DelCPeace@house.virginia.gov, DelTPillion@house.virginia.gov, DelBPogge@house.virginia.gov, DelCPoindexter@house.virginia.gov, DelMRansone@house.virginia.gov, DelRRobinson@house.virginia.gov, DelNRush@house.virginia.gov, DelCStolle@house.virginia.gov, DelBThomas@house.virginia.gov, DelLWare@house.virginia.gov, DelMWebert@house.virginia.gov, DelTWilt@house.virginia.gov, DelTWright@house.virginia.gov, DelDYancey@house.virginia.gov, DelKCox@house.virginia.gov

House Democrats (49) – Dear Delegate:

DelDAdams@house.virginia.gov, DelLAird@house.virginia.gov, DelHAyala@house.virginia.gov, DelLBagby@house.virginia.gov, DelJBell@house.virginia.gov, deljbourne@house.virginia.gov, DelJBoysko@house.virginia.gov, DelDBulova@house.virginia.gov, DelBCarr@house.virginia.gov, DelJCarrollFoy@house.virginia.gov, DelLCarter@house.virginia.gov, DelKConvirs-Fowler@house.virginia.gov, DelKDelaney@house.virginia.gov, DelEFiller-Corn@house.virginia.gov, DelWGooditis@house.virginia.gov, DelEGuzman@house.virginia.gov, delchayes@house.virginia.gov, DelSHeretick@house.virginia.gov, DelCHerring@house.virginia.gov, DelPHope@house.virginia.gov, DelCHurst@house.virginia.gov, DelMJames@house.virginia.gov, DelJJones@house.virginia.govDelMKeam@house.virginia.gov

DelKKory@house.virginia.gov, DelPKrizek@house.virginia.gov, DelMLevine@house.virginia.gov, DelJLindsey@house.virginia.gov, DelALopez@House.virginia.gov, DelDMcQuinn@house.virginia.gov, delmmullin@house.virginia.gov, DelKMurphy@house.virginia.gov, DelKPlum@house.virginia.gov, DelMPrice@house.virginia.gov, DelSRasoul@house.virginia.gov, DelDReid@house.virginia.gov, DelDRodman@house.virginia.gov, DelDRoem@house.virginia.gov, DelMSickles@house.virginia.gov, DelMSimon@house.virginia.gov, DelRSullivan@house.virginia.gov, DelLTorian@house.virginia.gov, DelDToscano@house.virginia.gov, DelKTran@house.virginia.gov, DelCTurpin@house.virginia.gov, DelRTyler@house.virginia.gov, DelSVanValkenburg@house.virginia.gov, DelJWard@house.virginia.gov, DelVWatts@house.virginia.gov

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)

4 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

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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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