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If the reader believes that the preceding discussions
of the
Problems
and a potential Solution are valid, the next step is to determine
if there is a
way to implement that Solution. The discussions showed that the Solution would
inevitably require passage of a constitutional Amendment.
The question now becomes is there any way to
pass a Constitutional
Amendment authorizing this Solution in the face of certain
opposition from Congress and other antagonists?
Article V of the Constitution defines
that either of two methods can pass an Amendment to the
Constitution:
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First Method
The Congress, whenever two thirds of both houses shall deem it
necessary, shall propose amendments to this Constitution, |
Second Method
The Congress, on the application of the legislatures of two
thirds of the several states, shall call
a convention for proposing amendments, |
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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. |
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Note: The "second method" calls an
"Article V Convention"
for proposing Amendments;
it does
not call a Constitutional Convention that could rewrite the Constitution. |
The first method requires a two-thirds vote in both
Houses of Congress. This is unimaginable except possibly in the
special case of the "prodding effect". This occurs when the States
are certain of immanent success using the second method but Congress
wishes to avoid an Article V Convention. In this case, Congress
proposes the Amendment directly to the States for ratification. In
effect, Congress preempts the States' opportunity to change the
Amendment's wording at an Article V Convention. Congress has done
this several times in
the past.
Therefore,
the second method is the key and the focus of this Plan. The
first method has importance only in a "prodding effect" scenario.
The Founding Fathers certainly anticipated today's
situation. Federalist 85 states "…the
national government will always be disinclined to yield up any
portion of the authority of which they were once possessed.…We may
safely rely on the disposition of the State legislatures to erect
barriers against the encroachments of the national authority."
The statement is prophetic—Congresspersons will not give up
their power and
perquisites in order to limit special interest's excessive
control of Congress. The
Founding Fathers therefore
included the second method of Amending
the Constitution, which for clarity this Plan calls an
Article V Convention.
The Founding Fathers deliberately gave
Congress no power to prevent the second method. Federalist 85
continues, "The words of this
article are peremptory. The Congress shall call a convention.
Nothing in this particular is left to the discretion of that body."
The words could not be clearer.
The Founding Fathers' words have great importance.
They were the
last assurances provided to the States
to persuade them to ratify the Constitution. Scholarly legal
interpretation of the Constitution relies heavily on them to find the
meaning behind the Constitution. Thus, Congress may not derail a
valid second method application:
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Congress
shall call a convention—there is
no option
not to call a convention.
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Congress may propose
one or the other
mode of ratification—there is
no option to propose neither.
There has been only one Convention
to date. The 1778 Philadelphia Constitutional Convention, convened
under the
Articles of Confederation, proposed the United States Constitution to
the States for ratification. Even though there have been no further Conventions, the Second Method has been very active.
There have been over 400 State
applications requesting an Article V
Convention—FOAVC
counted 568 applications. Of these,
only
about 29 have been for a general revision—i.e., with risk of a
"runaway" unlimited convention—while the
remaining
applications concern a specific or limited matter. Congress believe
that none reached the point
where two-thirds of the States acted together. FOAVC claim that the necessary
two-thirds were reached on
four occasions for same-subject applications, i.e.,
Apportionment, Balanced Budget, Direct Election Of Senators, and
Limited Taxation.
Congress seems to recognize the States' authority to have their
Convention, even though it has failed to
clarify the
procedures. When it has become apparent to Congress that
two-thirds of the States would apply with similar Amendments, it has
responded by proposing the Amendment
even when Congress was averse—e.g.,
Amendment 17 and
Amendment 19 below. On the other
hand, congressional deliberations
tell a different story, so
the States must always plan
that they will need an Article V Convention to propose the Amendment.
Per Congressional records, some specific cases where the States came close to having an
Article V Convention are:
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Amendment 17 - Senators elected by popular vote
Only one State
was lacking when the Senate finally passed a proposed
amendment providing for the direct election of Senators.
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Limitation of Income Tax Rates
Two States were lacking in a
petition drive for a constitutional limitation on income tax
rates.
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Legislative Apportionment Decisions
The drive for an amendment
to limit the Supreme Court's legislative apportionment decisions
came within one State of the required number,
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Balanced Budget Amendment
32 of the necessary 34 State legislatures passed
resolutions in the 1970's and 1980's petitioning Congress to call an
Article V Convention to propose an amendment requiring a
balanced Federal budget
except in time of war.
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Amendment 19 - Women's suffrage
About 40 percent of the
States had adopted women's suffrage in one form or another by
1918—the people of Oregon and Arizona even used the new power of
State direct initiative to approve women's vote. Finally, in
1919, Congress had little choice but to adopt the 19th Amendment,
which the States ratified in 1920.
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Amendments 1 through 10 - Bill of
Rights
Many of the States explicitly supported a Bill of
Rights in their documents ratifying the Constitution, and the
States worked forcefully with Congress to resolve its omission
from the Constitution.
As discussed above, Congress may preempt an Article V
Convention by proposing the Amendment by the first
method. Consequently, the First Method may ultimately be the method used,
but it will require the Second Method to reach an unstoppable momentum for that
to occur—often called the
''prodding'' effect.
Since the first Congress until the present,
congresspersons have introduced more than 10,000
proposals to amend the Constitution.
Congress proposed thirty-three of these to the States, of which the
States ratified twenty-seven. Thus, the procedures for the First Method of
amendment are well
defined.
However, as was shown previously, the chance of Congress
initiating an Amendment to solve the Problems is remote to
non-existent. Nevertheless, there are several
reasons why the First
Method may eventually be used. The political realities are such that
when it is evident that two-thirds of the States will apply for an
Article V Convention to propose the Amendment, then congress
may respond by proposing the Amendment itself.
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The Constitution does not limit the number of amendments that
an Article V Convention can take up. Rather, by using
the words "convention for proposing amendments" in the plural,
it infers that the Convention may take up more than one amendment. Moreover, when the Constitutional Convention assembled in 1787,
its mandate was to revise the earlier Articles of Confederation,
but it ended up writing the current Constitution. Consequently,
Congress has adopted fear of a ''runaway convention'' as a political argument to propose an
inevitable Amendment themselves rather than yield to the States'
Article V Convention power.
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In the Amendments where Congress preempted an
Article V Convention in the past, Congress kept close to the States'
wording. If Congress had not kept close to the States' wording,
then the States could have proceeded to an Article V Convention and adopted their own wording. Then Congress would
submit two versions of
the Amendment to the States for
ratification, and they could choose which one to ratify.
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Support for the Amendment will come from the many congresspersons who are
embarrassed by congressional unwillingness to resolve the
wealthy special interests
problem, and others who are concerned about the People's opinion of Government
and wish to improve respect and trust. Still others will understand the
need to provide the frustrated People of the U.S. with a way to
influence their own destiny through a government over
which they currently have no real influence.
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The greatest voting pressure for Congressional support of the
Amendment will probably come from
women and minority men whom Congress under represents by a factor of 7
and 2.4 respectively, but are fully represented in a
Boule (i.e., Citizens'
Initiatives Assembly).
These
two groups constitute
62.2 percent of all
who actually voted in 1998. If the Amendment becomes a campaign issue, this
group may be decisive in forcing Congress to move ahead.
State Legislatures will recognize that they have
both federal and
state constitutional obligations to support this approach. They will also see
compelling state benefits.
The next section on
state support discusses the obligations and
benefits. The people can obtain state support using four approaches as
appropriate. The first, a
State Referendum Bill, builds the most
powerful consensus, while the others are backup
alternatives.
Most importantly, each state should endeavor to support the Solution in
principle. At least, this should include a bill that sets out the level of support
and encourages public debate.
Since success by the second method depends on inter-state cooperation, the next most
important step is to starting dialogue with other states to develop the
cooperation plan.
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State Referendum Bill—Preferred
Option
A
separate referendum bill
page shows a generic referendum bill. To meet each state legislature's desired level of
commitment, they can make it as binding or non-binding as they
wish. The People's support by referendum not only adds
a compelling energy to the application, but also
combines the rights of the
States and the People in any constitutional dispute
with Congress
over procedures.
State
referendums prove the People's wishes and completely justify the
state's action. If Congress later prevaricates or fails to call
the Convention, Congress thereby would deny both the States and
the People's constitutional rights. This combination could be a
decisive factor to force Congress to comply with the
Constitution, perhaps via the Supreme Court. The other options
may not achieve this constitutional force.
The
onus for a referendum is on the state legislators. Motivation
will arise from the arguments in the
State Support page, pressure from public interest groups,
and from grassroots action. In hesitant States that require
referendum approval on
issues such as bonds, voters may have some linkage to urge a
State referendum on the Amendment.
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State Legislative Bill—Non-Binding
or Binding
A State
Legislature can
pass a bill in support of this Amendment, although this would not
demonstrate the extent of the people's support in the first option. However, if a state
proceeds with a bill to meet a schedule—e.g., to coordinate timing
with other states—the state can put a subsequent referendum of
support to the people. This would make the second option equivalent
to the first option.
The
wording of the bill can range over a spectrum of levels of
commitment. For example:
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A
relatively binding bill appears
on a separate page. The bill uses the ward "shall" for the
necessary state actions. From the perspective of moving the plan
forward, the binding bill is preferable.
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A
relatively non-binding bill appears on a
separate page. The bill uses the word "may" for necessary
state actions. If a state is unwilling to make a binding
commitment, passing a non-binding bill is far better than taking
no action. States adopting a non-binding
bill can still demonstrate leadership,
test public response, obtain sound advice, coordinate with
other states and take
authority and control over the amendment's wording.
Adopting a
bill that supports this Planned U.S.
Constitutional Amendment without necessarily committing the
State, or implementing an equal or better way to solve
these Problems for their State’s people
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State Citizens' Legislative or Constitutional Initiative
Twenty-four States permit
direct democracy initiatives—i.e.,
70 percent of the
34 states needed
to propose the Amendment, 63 percent of the
38 states needed
for ratification.
The following list of states has links to the I&RI site
describing their direct democracy features:
AK,
AZ,
AR,
CA,
CO,
FL,
ID,
IL,
KY,
ME,
MD,
MA,
MI,
MS,
MO,
MT,
NE,
NV,
NM,
ND,
OH,
OK,
OR,
SD,
UT,
WA and
WY.
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Fourteen
states (AZ, AR, CA, CO, ID, MO, MT, NE, ND, OK, OR, SD, UT and
WA) have direct legislative initiatives. A generic direct legislative
initiative example appears on a
separate page.
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An additional
five state (FL, IL, MI, NV and OH) have direct constitutional
initiatives. These states could change the wording to achieve a
similar result.
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Five more states
have indirect legislative or constitutional initiatives (AK, ME, MA, MS
and WY). In these states, the state legislature must give prior consent before the initiative
appears on the ballot.
A state initiative may be used to
apply for an Article V Convention. The
State
of Washington confirmed this in 1983. Under the U.S. Constitution's
Comity Clause (Article IV, Section 2), "the citizens of each state
shall be entitled to all privileges and immunities of citizens in the
several states." Consequently, the 24 initiative states may use initiatives
to apply for an Article V Convention to propose the Citizens' Initiatives
Amendment. State persons attending the
Article V Convention
or voting to ratify the Amendment must act in a
federal
function. Consequently, a
State initiative probably does not
legally bind the legislature. The
Supreme Court (Hawke v. Smith 1920) ruled that a popular
referendum (i.e., an Initiative) is not a substitute for either the
legislature nor a convention, nor can a referendum (i.e., an
Initiative) approve
of or disapprove of the legislature's or a
convention's decision on a U.S. constitutional amendment. Of
course, the initiative will carry great moral weight and it is likely that
those attending the convention will follow with their instructions. Any legislator who does not follow the
initiative's instructions will have to answer at the next election.
In this option, voters should place
state initiatives on the ballot to demonstrate public opinion,
establish the Amendment’s wording,
gain nationwide recognition, and build momentum towards its ratification.
However, a non-supportive
state legislature could negatively influence the Convention.
Five states (MI, NV, OH, UT and WA) permit both direct and indirect
initiatives. After an indirect initiative has been approved by the
voters, it is submitted to the state legislature for approval. Thus,
in states whose legislatures are favorably inclined to the Plan but
may need nudging, an indirect initiative is preferable to a direct
initiative because its final approval demonstrates both the
legislature's and the people's support.
These
state actions are summarized in the following schematic:
For all options and
in all the States, it will be essential to lobby and apply voter pressure to
move the plan forward. A separate
section of the web site presents ways to achieve this.
At a state level, voter lobbying and pressure can be very effective.
State legislators are
much more accessible and willing to listen to the people—they
tend to live and work close to their constituents and there
are about 15 times more state legislators per capita than
congresspersons.
This
method was very effective in gaining women's suffrage. The
National Woman's Party urged citizens to vote against
anti-suffrage senators up for election in the fall of 1918. After
the 1918
election, most members of
state and congress were pro-suffrage.
Grass-root action can start immediately:
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Initiate
grassroots voter action with a
voter email campaign and postal mail that encourage
your family and friends to participate in direct democracy.
It will educate voters in how to use their
votes to create this Solution. Recent elections have demonstrated the
effectiveness of this approach.
Internet now connects to
207 million people—70.4 percent of the U.S. population. Ultimately, it will lead to more
conventional political advocacy in cooperation with many
other public-minded organizations.
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Make your position known to your
elected representatives and candidates
by an email campaign and post letters. Note
that email and mail addresses of all your Congresspersons, State
Representatives and Candidates are available by simply entering your zip+4
code at top left of
 .
If you do not know your zip+4 code, you can find it by entering your address
at Project Vote Smart or
at
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Young family members
are invaluable Internet agents for an email campaign and they get a good civics lesson too.
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Get
clear statements of
candidate intent to know if your candidates are
committed to this Amendment and to minimize the extent that the Amendment
may be watered-down during its adoption.
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Encourage
public debate and media involvement.
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Enlist the support of other
organizations, especially those who can encourage their members to
use their Internet sites to
promote this Solution by an
email campaign to their members.
There are many nonprofit
nonpartisan public issue organizations. Moreover, many have
huge memberships—few voters are not on the membership list of
one or more organizations. As U.S. corporations, they will be
eligible to propose Initiatives, to which the Boule will
generally pay attention because they will usually address
issues of concern to the People. This will accord these
organizations an authority that they do not now possess.
Consequently,
the general support of these organizations is expected.
Moreover, since their influence with their members is
considerable and their memberships are very large, they can have
a profound effect on the implementation of this Solution.
On the other hand, some of these
organizations become overly bureaucratic. This could cause them
to view this Plan as a threat to their reason for existence. However,
most organizations address a range of issues so they will not
feel threatened and they will generally wield their power to
gather support for the planned Solution.
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Print and circulate copies of key pages of this web site for
those not on the Internet (If you print copies remember to set
your print margins to minimum or zero).
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If you think this plan has merit, start the dialog now by
emailing the link for this web
site to your friends
and associates. Unique visitors to this web site have increased by 215%
in 2005. The site is easy to find on all the major
search engines and its list position is steadily moving up.
To increase its visibility, please send comments to
improve its content, introduce it into blogs, and add a link to it from your web
site.
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If there are
States and legislators whose support is needed but not forthcoming, voters
will have to use ballot power. If you are not
a registered voter,
instructs you how to register in your district.
When a few states support this Amendment, it is likely that they
will annex this Amendment
and improve it. When
34 states
have submitted
applications for the Amendment, Congress is obliged to call an
Article V Convention at which the States can
propose the Amendment. Subsequently,
38 states can
ratify
the Amendment as part of the Constitution.
At
present, there do not appear to be any
Solutions to the Problems that are
equal to or better than the Plan presented here. This Plan may
motivate others to create a better plan. Realistically, it
is possible that one will arise and that the States will adopt it. This
Plan will then have performed its objective by setting a standard.
However, procrastination is a very dangerous option given the urgency,
magnitude and consequences of the Problems.
Passing a Constitutional
Amendment is a huge task and the end is not foreseeable at the start. Opposition
will certainly be intense, devious and wealthy. If the States find the
section on state support to be compelling, the
necessity to raise funds will be minimal. On the other hand, a long fight to
gain support could cost over $250 million, using
professional organizations to manage the process. Nevertheless,
this is a minuscule price compared with the
annual savings
and a
small
fraction of Washington lobbyists' annual budget. Funding is within
the means of many philanthropic organizations and a few wealthy
patriotic individuals. Public donations could also raise the
funds—but this would require huge effort and would take a
long time.
Depending on the need
and availability of funds, it will take about five to fifteen years from
start to ratification.
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