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Correcting Hillary Clinton’s Misconceptions About the Movement for Constitutional Amendments

Correcting Hillary Clinton’s Misconceptions About the Movement for Constitutional Amendments

In recent months, Hillary Clinton has made numerous inaccurate statements about those Americans working for what the Constitution calls a “convention for proposing amendments.” Because of Clinton’s national standing, her claims merit a response.

Under Article V of the Constitution, when two-thirds of the state legislatures (34) pass matching resolutions called “applications,” Congress must call a convention to propose, not enact, constitutional reforms. The idea is to allow Americans, working through their state legislatures, to propose amendments the Washington, DC establishment opposes.

Because of dissatisfaction with the federal government, several campaigns have sprung up favoring corrective amendments. Although they span the political spectrum, collectively they are referred to as the “Article V movement.”

This article lists some of Clinton’s statements and corrects each:

Clinton: “There’s a big move for change coming from the right that I think would be disastrous for our country.”

Correction: Only one of the major Article V campaigns is based primarily on the right. It is the “Convention of States” organization—assuming one defines reducing federal power as solely a “right wing” cause. The other campaigns promote solutions also favored by the center and left. For example, despite recent efforts by establishment politicians to marginalize the campaign for a balanced budget amendment, its cause is broadly bipartisan. Several state legislatures have signed on with unanimous or overwhelming bipartisan votes. Similarly, U.S. Term Limits enjoys broad bipartisan support.

On the left is the WolfPAC organization. It favors campaign finance reform and has the support of several liberal-leaning state legislatures.

It’s important to remember the Constitution established the amendments convention procedure for all Americans, not just for those on any particular side of the political spectrum.

Clinton: “They want radical, ‘pull ’em up by the roots’ change.”

Correction: None of the amendment campaigns—right, center, or left—favors the open-ended convention needed for radical change. All of their model legislative applications severely limit the convention’s scope.

Clinton: “They want to have a constitutional convention to rewrite our Constitution, to make it friendlier to business, to inject religious and ideological elements.”

Correction: The Constitution does not authorize a constitutional convention, and none of the amendments campaigns advocates one. They favor only a limited gathering—what the Constitution calls a “convention for proposing amendments.” This idea is not unique: American history has witnessed several conventions that suggested constitutional amendments, although none of those conventions had formal proposal power.

Moreover, a convention for proposing amendments has no power to “rewrite” the Constitution. As its name indicates, it may only propose amendments. To be effective, any amendment must be approved by three-fourths of the states (38). This formidable requirement ensures that any amendment enjoys support from the overwhelming majority of the American people’s representatives.

Clinton’s comments about business and “religious and ideological elements” are pure fantasy. None of the legislative applications being promoted by the Article V Movement contain anything specifically pertaining to business, religion, or ideology.

Clinton: “So talk about radical change! They are pursuing it, they are funding it, and they are electing people that are either true believers or are willing vehicles for it.”

Correction: Clinton has the funding situation exactly reversed. All the Article V campaigns have budgets ranging from minimal to modest. None has the financial power to elect anyone. By contrast, their leading opponents—such as the Washington, DC pressure groups Common Cause and the Center for Budget and Policy Priorities—enjoy annual budgets in the tens-of-millions.

Clinton: “The right wing, aided and funded by Mercers, Koch brothers, etc. is very serious about calling a constitutional convention.”

Correction: Again, the Article V campaigns are not seeking a “constitutional convention.” They are simply trying to exercise a constitutional right akin to the right to vote.

Furthermore, the Article V movement cuts across ideological lines. Some right-wingers favor it, as do some left-wingers. Other right-wingers oppose it, as do some left-wingers. My constitutional research helped renew the movement, and I’ve been involved with it for over eight years. I’m personally unaware of any Article V funding from either the Mercer or Koch families. Like the overwhelming majority of those involved in the cause, I do most of my work as a volunteer.

Clinton: “Part of their gerrymandering is to control state legislatures, elect Republican governors.

Correction: All the Article V campaigns are nonpartisan. Several draw wide support from both liberals and conservatives. Incidentally, the comment about Republican governors is further evidence that Clinton’s is ignorant of the process: State governors have no role in the Article V process.

Clinton: “If you really get deep into what they’re advocating: limits on the First Amendment, no limits on the Second Amendment, limits on criminal justice.”

Correction: The only Article V campaign favoring changes in the First Amendment is WolfPAC, which is based on the left, not the right. Neither the Second Amendment nor criminal justice are the subjects of any Article V campaign.

Activists Can Spend Their Time Better Than Trying to Resurrect the Long-Dead “Equal Rights Amendment”

Activists Can Spend Their Time Better Than Trying to Resurrect the Long-Dead “Equal Rights Amendment”

Left-of-center activists are prodding state lawmakers to waste public time “ratifying” a constitutional amendment that, by its very terms, is long dead and can no longer be ratified. Earlier this year they even convinced the Nevada legislature to sign on to their campaign.

They should use their time and energy more wisely by campaigning for amendments that are both feasible and would make life better. One such amendment was proposed by James Madison and approved by Congress over two centuries ago — but could still be ratified today.

In 1972, Congress proposed a measure supporters dubbed the “Equal Rights Amendment” (ERA). On its face, the ERA seemed to ensure equality for women. In a burst of enthusiasm, 35 of the necessary 38 state legislatures ratified it.

As public debate continued, however, it became clear the ERA was a poorly-drafted measure that would do little for women’s rights. It would have transferred massive amounts of power away from local governments and elected representatives, handing it instead to lawyers, judges, and bureaucrats. When state legislatures realized this, the ratifications stopped and several states rescinded.As proposed by Congress, the ERA provided that it would become part of the Constitution only if 38 states approved it within seven years — that is, by 1979. When the ratification campaign bogged down, Congress tried to change the rules by extending the deadline to 1982. Not surprisingly, a federal court ruled that Congress could not do that. Although the court’s decree later proved unnecessary — state legislatures weren’t going to ratify such a flawed amendment anyway—the court’s opinion remains one of the most thorough judicial discussions of the amendment procedure.

Of course, even if Congress’s extension had been valid, the ERA still would have expired long ago.

Do activists have any serious legal basis for raising the ERA zombie? Well, no. Their “legal” arguments are based on a 1997 article written as a law student project. As often happens with student projects, the article is so error-ridden that no court is likely to take it seriously.

Activists should spend their time more productively by promoting useful constitutional reforms overwhelmingly favored by the American people — reforms now blocked by an unresponsive Congress. Examples include federal term limits and a balanced budget rule.

Or, if they want to exercise their fascination for the ancient, they could campaign to complete ratification of James Madison’s original first amendment, which Congress proposed in 1789 as part of the Bill of Rights. Although the requisite number of states have never approved it, unlike the ERA, the original first amendment has no ratification deadline.

As proposed by Congress, the measure provided for growth in the House of Representatives along with the growth in population, until such time as:

the number of representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand.

Adopting this amendment today might induce us to convert the U.S. House of Representatives from a council of Washington D.C. politicians into a large assembly citizen-lawmakers — linked to each other electronically, but residing in and representing their local communities. (The Senate would not be affected.) A large House of Representatives would better represent popular opinion and make it much harder for lobbyists and special interests to control Congress.

It would give citizens much better access to Congress than they have now. It would magnify the voices of the women the activists claim to care about.

Not only has modern technology rendered a very large House of Representatives practical, the cause is also politically feasible: In 1992 dedicated citizens secured ratification of Madison’s original second amendment — now in the Constitution as the 27th.

Whether or not activists undertake that project, they should stop wasting public time. Let the decomposed corpse of the ERA rest in peace.

An Amendments Convention is a “Convention of the States”—Here’s the Proof

An Amendments Convention is a “Convention of the States”—Here’s the Proof

Some opponents of holding a convention for proposing amendments to the U.S. Constitution still claim the nature and composition of an amendments convention is a “mystery.”

That claim has not been viable for several years now, but it certainly is no longer viable with the publication of the copious evidence that an amendments convention is simply a convention of the states—a kind of meeting that has happened many times in our history, and whose protocols and composition are well understood.

The Heartland Institute has just published my article, Why a “Convention for Proposing Amendments” is a Convention of the States. It draws together the copious evidence on the subject. You can get it here.

Third in a Series: John Dickinson During the Continental and Confederation Periods

Third in a Series: John Dickinson During the Continental and Confederation Periods

This is the third of a five-part series on Founding Father John Dickinson, who published his highly influential “Farmer Letters” exactly 250 years ago. The series was first published by the Washington Post’s blog, The Volokh Conspiracy.

In 1774, John Dickinson was elected to the First Continental Congress. As he had in the Stamp Act Congress, he served as principal drafter of public statements. The following year he was returned to the Second Continental Congress, where he again served as principal drafter. He was the primary author of, among other papers, two petitions to the Crown and The Declaration of Causes and Necessity for Taking up Arms. Moreover, he chaired the congressional committee that drafted the Articles of Confederation: Our oldest draft of the Articles is in his handwriting.

Throughout this period he tried to steer a middle course between submission and rebellion. He was a firm believer in moderation, which he once called “a virtue, and the parent of virtues.” Another member of Congress, Thomas Jefferson, wanted to proceed more vigorously. In his Autobiography Jefferson relates a story pertaining to the Declaration of Causes and Necessity for Taking Up Arms and the second petition to the Crown, the Olive Branch Petition. The anecdote reveals how most of Dickinson’s colleagues perceived him:

I prepared a draught of the Declaration committed to us. It was too strong for Mr. Dickinson. He still retained the hope of reconciliation with the mother country, and was unwilling it should be lessened by offensive statements. He was so honest a man, & so able a one that he was greatly indulged even by those who could not feel his scruples. We therefore requested him to take the paper, and put it into a form he could approve. He did so, preparing an entire new statement, and preserving of the former only the last 4 paragraphs & half of the preceding one. We approved & reported it to Congress, who accepted it. Congress gave a signal proof of their indulgence to Mr. Dickinson, and of their great desire not to go too fast for any respectable part of our body, in permitting him to draw their second petition to the King according to his own ideas, and passing it with scarcely any amendment. The disgust against [i.e., distaste for] this humility was general; and Mr. Dickinson’s delight at its passage was the only circumstance which reconciled them to it.

This respect for Dickinson was not universal. John Adams, one of Congress’s leading hotheads, described him as “delicate, and timid” and representative of people of “great Fortune and piddling Genius.”

By the summer of 1776, Dickinson realized Independence was inevitable. He was certain, however, that publicly declaring it was premature. His July 1 speech in opposition to the Declaration, of which we have notes but not the text, shared with his 1764 Pennsylvania assembly oration a careful balancing of risks, probabilities, and benefits. Like his other productions, the July 1 speech was punctuated with sound bites. Thus, of his countrymen, he avowed, “I had rather they should hate me than that I should hurt them,” and he characterized advocates of an immediate declaration as wanting to “brave the storm in a skiff made of paper.”

A modern American may find it difficult to sympathize with Dickinson’s arguments against Independence. But a historian finds it difficult to disagree with all of them. Several of Dickinson’s predictions proved entirely accurate. One was that only American military successes, not the Declaration, would bring France into the war. Unfortunately, Dickinson’s prediction that his stance would destroy his popularity also proved accurate.

Dickinson’s speech against Independence, like his opposition to the 1764 Galloway-Franklin charter plan, illustrates the man’s enormous moral courage. There is no record—and I am not the first to make this observation—that John Dickinson ever backed down in the face of popular opposition when an issue was important.

When it became apparent that a majority of states in Congress would approve the Declaration, Dickinson remained a team player. He and Robert Morris withdrew so the vote could be unanimous. Unlike most in Congress, moreover, Dickinson served two stints in the Revolutionary armed forces.

Another insight into his character is offered by his 1781 decision to free his slaves. Most of the Founders opposed slavery. But Dickinson was one of the few to free his own slaves during his lifetime.

Dickinson’s loss of popularity kept him from political office for about three years. His political comeback began in 1779, when Delaware returned him to Congress. Two years later he was elected president of that state, and in 1783 president of Pennsylvania. He was re-elected to two additional annual terms, thereby serving the constitutionally-permitted maximum.

In 1786, he represented Delaware in the Annapolis Convention, and was elected president of that body. The Annapolis Convention, of course, was the assembly that recommended to the states a wider federal convention in Philadelphia the following May. Virginia (not Congress, as commonly claimed) responded by formally calling the Philadelphia conclave.

Delaware sent Dickinson to Philadelphia as the head of a five-man delegation. In that capacity he impacted the results significantly.