Show Me Progress:: Is America Too Top Heavy?

The 3/4ths ratification process.. (0.00 / 0)

...precisely addresses your concern Michael. To have all the States move in unison (75% support) would be virtually impossible and only possible unless the amendment being considered was common sense, so straight ahead, and non-partisan in nature. The problem you identify about special interest groups with deep pockets exactly describes the corruption in Washington today -- the convention clause does not compound the issue, it is the remedy (and the control of those same special interests is why the convention hasn't been called).

Article V states,

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, 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...

If you have been witness or have had any direct political experience in trying to achieve this high of voting threshold, you would know that the 3/4th voting requirement acts as a firewall to block any hacking of the Constitution by extreme or radical proposals.

A further protection is seen in the fact that this 3/4ths voting threshold does not apply to only one legislative body, but rather in the 50 separate State legislatures -- clearly making any extreme left or right ideas non-starters.

To subscribe to the notion that an amendatory convention -- as outlined in Article V - would make for a runaway convention hijacked by all sorts of quackery, is ignoring the built in protection designed by the Framers to avert any such radicalism; over-politicizing any aspect of any amendment essentially renders these ideas moot.

This then leaves the question, what good could an Article V Convention achieve, if it is designed to be so extraordinarily 'centrist' in its political disposition?

Well, there's where the proof's in the pudding. An Article V Convention, as a fundamental check-and-balance designed into our Constitution, does not play in the Right/Left political paradigm, but rather, it deals with the Top/Down nature of the Federal Government powers above, as contrasted with the Several States below.

To wit, there are many aspects of Washington DC that have grown beyond their means, lobbyist power, politicians running up deficits in an out-of-control fashion - these faults are many and too numerous to mention.

The Convention clause of Article V that's already been triggered does indeed contend with a runaway - although it is not a runaway convention - it's the runaway train of Federal Government penetrating into an unknown realm of limitless debt and corruption never seen before; a runaway Washington sans ability to self-correct or exhibit any sense of moderation or self-control.

Don't be afraid of this fundamental right, many of our most respected Statesmen were not -- it's time for our nation to put the brakes on, and Article V is the push pedal. Don't believe it? Check it out for yourself: www.foavc.org

by: Byron DeLear @ Thu May 21, 2009 at 09:41:14 AM CDT

[ Parent ]

The devil is in the details (0.00 / 0)

Do those fifty state legislatures vote to ratify each separate new article on its own, or do they just get an up or down vote on the total package? Scary prospect, don't you think?

The legislatures of Utah, Nebraska, Idaho, Montana, Kansas, all relatively small population states, each individually have the same weight as the legislatures of New York and California (okay, California is a really bad example right now). That 3/4ths threshold (states rights!) is not reassuring at all, and it's certainly not democratic by population.

I'm not ready to go this far quite yet, but here's a relevant comment at Balloon Juice:

This may sound controversial, but California has always struck me as proof that too much democracy is bad for Democracy.
On the other hand, our federal government has always struck me as proof that too little democracy is bad for Democracy.

From Ex Parte Milligan, 71 U.S. 2 (1866):

...By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers. or the clamor of an excited people...

It's the clamor of an excited people that I'm worried about.

543,895 votes

by: Michael Bersin @ Thu May 21, 2009 at 12:56:48 PM CDT

[ Parent ]

The problem with the concerns (0.00 / 0)

The problem with those who express concerns about the Article V Convention is that they fail to realize the only difference between a proposal of an amendment by convention and Congress is the proposing body.

There is not one comment in all of this concerning that Congress might do as is alleged a convention might. No one speaks of any risks of Congress proposing an amendment such as is suggested of a convention. If a convention is risky, isn't Congress which has the exact same powers of proposal and is clearly influenced by those special interests even more risky?

Logically therefore we should take no risk if we are to be the most safe. If those who are so concerned about the safety of a convention why have they not referred to the risks taken by Congress in the 27 times the Constitution was amended? The odds of a successful amendment are minuscule at best. In all some 10,000 amendment proposals have been made in Congress. As noted, 27 have become part of the Constitution.

The convention is no more risky a proposition than Congress and Congress has shown 27 times in all kinds of political conditions that the amendment procedure works, that it is safe and that our nation has benefited from the changes which the times of that day made necessary.

And don't forget the 700 plus state constitutional conventions which have been held in this nation since 1776. Are we, because a convention is not said to be said, no longer improve our state governments? There is a lot to be said for states that kept up with the times and little to be said with those that haven't.

by: Bill Walker @ Sat May 23, 2009 at 20:23:59 PM CDT

[ Parent ]

You ignore the question (0.00 / 0)

The problem with those who express concerns about the Article V Convention is that they fail to realize the only difference between a proposal of an amendment by convention and Congress is the proposing body...

Oh, there is a difference: Rules? In a knife fight? No rules.

Congress addresses those amendments one at a time. A constitutional convention will do a whole lot of stuff at once, the whole thing, or not.

You defeat your own argument:

...If those who are so concerned about the safety of a convention why have they not referred to the risks taken by Congress in the 27 times the Constitution was amended? The odds of a successful amendment are minuscule at best. In all some 10,000 amendment proposals have been made in Congress. As noted, 27 have become part of the Constitution...

Visualize 10,000 amendments in a constitutional convention. Or 1,000. Or one hundred. How many people are going to read the whole damn thing? Yeah right, the mighty Internets and blogtopia (y,sctp!) will lead the way in enlightening the masses. If there's no American Idol finale that week.

Do you think people will have the patience to wade through over two hundred years of precedent and stare decisis while slogging through a constitutional convention and subjected to the well-financed and excruciatingly applied pressure of interest groups? And believe me, the money expended by single interest groups in the process would make a presidential election look like a penny ante poker game. You're willing to gamble. I'm not.

Ex Parte Milligan, 71 U.S. 2 (1866)
...The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority...

Quaint? Do you think those sentiments would prevail today?

543,895 votes

by: Michael Bersin @ Sat May 23, 2009 at 22:34:22 PM CDT

[ Parent ]

I understand... (0.00 / 0)

...and hear you when you say that's "a gamble you're not willing to make."

To answer your question-- do I,

"really think that a constitutional convention would be immune from the "...clamor of an excited people..."?

It would not be immune. At least a small clamor is probably a pre-requisite for the convention to happen at all. I also feel believe the 2/3rds proposal threshold and the 3/4ths ratification threshold clearly will block anything radical from being added to the Constitution. I have had firsthand experience with attempting to achieve requisite super-majorities for proposals - it is exceedingly difficult. Like I mentioned earlier, the only ideas I see that could make it through, would be ones that would garner significant bi-partisan support, and be politically compromising to oppose.

The nation's first Article V convention would most certainly cause a clamor, and people would learn and be educated more about their government. I think one of the best things we can do is to encourage engagement and involvement, and to educate folks as to what's possible. If people are frustrated with the status quo and turned off, quite possibly a new way might turn some folks on. They might see that they can have a voice in shaping the destiny of our nation; this was part of the promise of the progressive era, to regulate and push back forces that had dominated commerce and politics (Robber Barons, etc.).

The blank check trillion dollar bailouts, to me, suggests a new round of political empowerment for everyday Americans is needed. I see the nation's first convention as possibly being part of this move towards empowering the people.

by: Byron DeLear @ Sun May 24, 2009 at 12:35:34 PM CDT

[ Parent ]

Unintended and intended consequences (0.00 / 0)

I've seen far too many bad ideas implemented in the name of "populism" which have had unintended and intended consequences.

California is a textbook example of this, though the problem occurs everywhere. [A fool proof way to vote "correctly" on a California ballot initiative without actually reading it for content? If the text of the advocacy statement on the ballot provided by the proponent or opponent contains underlines and/or boldface, vote in the opposite direction.]

Have you ever wondered why Kansas doesn't have term limits for legislators and Missouri does? Do you think people with deep pockets had something to do with manipulating the populist clamor for that 75% vote in favor of term limits in Missouri because they wanted to flip the General Assembly? Why no interest for the same in Kansas? The consequence of legislative term limits in Missouri is no institutional memory and special interest mayhem.

A federal balanced budget amendment? Oh, that'll work great. In good times there'll be no investment in infrastructure. In bad times there'll be no safety net.

A flag burning amendment? Even better, how about an amendment requiring specific decorum for the Star Spangled Banner or the Pledge of Allegiance? Or, how about having to stand every time Lee Greenwood's "God Bless the USA" is performed in public? You don't think that would happen, even in the face of aesthetic opposition?

A national sales tax and eliminate income taxes? It'd be a snap to get approval. And then we'd watch wealth get distributed upward at even faster rates. We'd all be living in a banana republic with imported bananas.

...this was part of the promise of the progressive era, to regulate and push back forces that had dominated commerce and politics (Robber Barons, etc.)...

How's that working out for you? Did the push back with a constitutional convention?

A constitutional convention would allow those forces that dominate commerce and politics to dominate the shaping of the Constitution to their advantage and too our greater peril.

Robert Bolt - A Man For All Seasons: A Play In Two Acts
...William Roper: So, now you'd give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country 's planted thick with laws, from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake...

I prefer the old fashioned way of changing the world. One local election at a time.

543,895 votes

by: Michael Bersin @ Sun May 24, 2009 at 13:52:31 PM CDT

[ Parent ]

A response to Professor Bersin (0.00 / 0)

Dear Professor Bersin,

It has always amazed me how everyone assumes that the rules of politics apply for everything but a convention. You compare a convention with a "knife fight." People like yourself will be the delegates to this convention. Tell me, if you were a delegate would you engage in such tactics?

The fear of a convention is so pervasive that to be blunt it will be lucky to propose a single amendment. The reason? Because everyone is so fearful something will happen they won't work together to see anything happens. And if you can't get two thirds support for a proposal, no proposal.

This doesn't even bring into question the issue of ratification of a proposed amendment, no small task.

Instead what we see is pure, unreasoned fear from people such as yourself who say obeying the Constitution is too risky. Fine. But remember this even England is now talking about holding a constitutional convention (which is the correct term for them since they have no constitution) because they realize their form of government needs a major overhaul. One by one the nations around the world that are now beating our butts are benefiting from the conventions they held about ten or fifteen years ago.

This nation has systematic problems and if they are not solved quickly they will bury us. The only way to do that is by amendments to the system and since the problem for the most part is the government, we can't rely on them to solve this and that means a convention.

And oh by the way, since you are so fearful of a convention and all the terrible things it will do, could you please name for me the leader of the political movement that is going to do it? And please no pulling out of names like Pelosi, Reid et al. They are on public record supporting vetoing the Constitution when it comes to Article V. Give me the name of the political movement and the leader that has the power to completely overturn our entire form of government but is so impotent he can't move until Congress votes to let him or her go ahead.

Just remember this: politically there will be at least 21 different amendment issues on the deck for a convention, many of which conflict with each other. At the minimum then that means 42 special interests all competing with each other to stop, promote and otherwise or otherwise influence a convention with none of the usual political tools available to them. They can't promise money for the next election because there won't be one. They can't work on personality because a convention is entirely issue meaning the ideas will prevail not the delegates. This fact will make influence such as you suggest nearly impossible to accomplish. The merits of the proposals will be at the center of the debate and anyone can tell you in a political debate the last thing anyone wants to do is talk about the issues. But here, there will be no choice. The job is non-partisan and volunteer so forget party influence and party loyalty.

Every action of the delegate will be watched by hundreds of people. The delegates will be vetted by the voter more than any other election because their stance on the issues which will already be known is the only thing they can be vetted on. And of course then there's the point you miss most of all: we are not discussing political theory here professor. We are discussing fact. These delegates will know that if they screw up they will have to live with that for the rest of their lives and will be remembered for all of history. The weight of the reality that what they do is so critical will bear down on them like a ton of bricks. It's one thing to use scare tactics when its all a blog post. It's quite another when a delegate is actually elected and truly has to make his or her mind as to how to vote on an amendment that really will become part of the Constitution.

by: Bill Walker @ Sun May 24, 2009 at 16:37:46 PM CDT

[ Parent ]

Creating rules out of what? (0.00 / 0)

...politically there will be at least 21 different amendment issues on the deck for a convention, many of which conflict with each other. At the minimum then that means 42 special interests all competing with each other to stop, promote and otherwise or otherwise influence a convention with none of the usual political tools available to them...

It says all of that in Article V? Are we playing Calvinball here?

...since the problem for the most part is the government...

That sounds familiar. Uh, we're the government.

...These delegates will know that if they screw up they will have to live with that for the rest of their lives and will be remembered for all of history...

And there are people in this country who consider their agendas, even if contrary to the present Constitution, superior to the Constitution. As if history is really their concern?

"...And he said, 'History,' and then he took his hands out of his pocket and kind of shrugged and extended his hands as if this is a way off. And then he said, 'History, we don't know. We'll all be dead...'"

...It's quite another when a delegate is actually elected and truly has to make his or her mind as to how to vote on an amendment that really will become part of the Constitution....

Elected delegates? Did I somehow miss the part in Article V where this was all spelled out? Who came up with these "rules"?

543,895 votes

by: Michael Bersin @ Sun May 24, 2009 at 17:02:08 PM CDT

[ Parent ]

by: you @ soon

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I agree with your.. (0.00 / 0)

..analysis when you say,

"So my argument is this: you say that the 3/4 threshold will prevent anything radical or threatening to the health of the republic from passing. But wouldn't this same threshold destroy the chances of any real effort at reform?"

First off, please forgive the length of my reply and I greatly appreciate the opportunity to clarify the issue.

I must make mention of the fact that the non-partisan group that's been organized to help popularize this, Friends of Article V Convention, does not advocate for any specific amendments, we are only trying to educate and inform in an effort to see the nation's first Article V Convention.

Clark and Michael, thanks for commenting and taking the time to give it some thought -- Clark, let me speak to your second concern, 'that since nothing can get past the process', why bother?

...but I'm equally afraid of it being a monumental waste of time and effort.

After living with and researching the Article V issue for 5 years now, I see the convention clause and ratification filter as having the unique capacity to only produce and pass extremely simple, common sense ideas.

Common sense ideas to most everyday Americans, but perhaps because a particular idea may not comport with the powers that be, Congress has been unwilling or unable to consider the solution. This is the clichéd feedback loop: 'power corrupts...etc.'.

Take an example like the 27th Amendment; an amendment that was authored in 1789 and only completed the State's ratification process in 1992 -- over 200 years of incremental ratification by State legislatures.

Needless to say, this idea had legs. It must have been a strong, simple idea that most Americans would agree with; and indeed that was the case, the 27th Amendment makes sure no member of Congress can vote a salary up or down, and have it take effect during the current term he or she was serving.

...prohibits any law that increases or decreases the salary of members of the Congress from taking effect until the beginning of the next set of terms of office for Representatives.

An Amendment like the 27th would be the kind of simple idea that would survive an Article V amendatory convention followed by the 3/4th ratification requirement by the States; it would have to be such a no-brainer and practically unassailable -- so obvious, that it would be politically compromising to mount an opposition to it, like the 27th amendment enjoyed a lack of opposing forces to the point that after 200 years of accumulating State ratifications, it finally passed the 3/4ths threshold, finished its amendatory marathon, and became law.

To me, there are three ideas that might be simple enough to pass muster:

1. Balanced Budget Amendment--this one is common sense, would help to rein in a lot of the overreaching Washington DC is guilty of, in fact, from 1975-1980 there were 158 applications from 36 States (exceeding the 34 State convention trigger) many for a balanced budget, without any rescissions. By my reading of the law, we should have had our convention.

I will even venture to say that all the excessively profit-based ailments plaguing our nation today (health care, oil addiction, etc.) may have been avoided if the convention wasn't blocked over the years. A convention could have quite possibly prevented Wall Street from being allowed to behave in such a reckless manner causing the recent collapse of our financial system and economy. It used to be against the law to charge more than 10% interest, it was called usury and it was morally unconscionable. Maybe some of these good ol' common sense concepts wouldn't have been so easily abandoned with Article V's check-and-balance of an overreaching Federal government -- or in the case of massive deregulation, an 'over-sleeping' Federal government.

2. Political Finance Reform--Maybe a people's convention could bring some comprehensive campaign finance reform? Hasn't the Corporotocracy held us back and damaged our people enough? Most Americans I talk to feel that corruption has become institutionalized into our political system (both parties) to such a degree that they feel as if their ability to be heard is drowned out by special interests and big money. Maybe there's a way to make our escape out of these golden handcuffs? Certainly, at the very least the civic ceremony of exercising our Constitutional right for the convention call will have a cultural intrinsic value and be of great service, educating a more thorough understanding of the Constitution -- and just may succeed at inspiring many citizens into being more politically involved with our country, a positive outcome, even if the simple ideas don't make it through.

An Article V Convention would be an empowering democratic process to a wholly and partially disenfranchised electorate.

3. Secure the Vote--provide for independent verification of ballot results, public elections, not ones outsourced to private firms and/or machinery; and a possible exploration of standardizing the American voting experience in effort to satisfy the Equal Protection and Due Process Clauses in our Constitutionally protected right to vote.

The point is that if the people have been losing to special interests in Washington for oh so long, the convention clause could open up another front, in which maybe an opening could be found. Yes, there would be the same old lobbyist influences, corporate and party machine activists.

But there would also be another element; a new voice. A percentage of delegates would be less constrained by the standard negative conditioning the political old guard suffers from. They would be more hopeful, idealistic, what did Barack say, "They wanted me to stew in DC a little longer, 'til all the hope got boiled out of me!"

Also, by the very nature of this national civic ceremony being exercised for the first time, the media would be all over the new voices and possibilities coming out of the convention. The people just might be able to 'steal the show'.

Clark and Michael, to me, this much needed protection deserves to have its day, and in an era possessed by a complete new set of tools for communication and sharing, I predict that if we ever get a chance to see the Article V Convention, it will light up the blogosphere and citizen activists like we've never seen before. Even though I've heard your concerns about a hijacked convention or a meaningless one, I'm not afraid of that kind of democracy. I think that's the kind we want.

by: Byron DeLear @ Fri May 22, 2009 at 03:42:56 AM CDT

[ Parent ]

An Amendment coming... (0.00 / 0)

...into existence through an AVC, would see this new bottom-up method of Federal reform for the first time -- change occurring outside of Washington. That's a big change. Yes, the 27th didn't fix our health care system or anything major. The example was to show the simplicity of what would penetrate the nomination and ratification process; and in my opinion, what could make it through the AVC process, would be a simple idea like the 27th.

I don't think that just because a potential amendment is simple means it can't have a significant positive impact on our nation. Also, I still think the convention in of itself would have a positive impact on our country.

You said,

The stumbling block isn't Congress - it's the 50 state legislatures that are dominated as much, if not more, by special interests.

I don't see this. They may be dominated by special local interests, but they are not as compromised by national special interests. Clark, whenever great reforms came into our nation like the abolition of slavery, women getting the right to vote, civil rights, they always came from the bottom-up, from the people. It doesn't make sense to say there's less corruption in Congress then there is among local officials. I'm sure there's corruption in both places, but maybe local officials would have the capacity to visit some ideas that Congress refuses to or can't.

I do see state legislatures as obviously having more provincial concern; Hamilton touches on that in Federalist 85 when talking about the Article V Convention (AVC). But clearly, the higher the office in this land, the more manipulation that office is exposed to -- because much more is at stake. Bigger numbers, more impact on markets, etc.

In terms of a controlling influence removed from everyday Americans in forms of big money, corporate and lobbyist manipulation, the US Senate is much more controlled by these elements than a State House seat, that's obvious to me.

Federalist 85... (emphasis added)

Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.

Live with this idea a little longer instead of dismissing out of hand, I think the convention clause is there for a reason, and when trillion has become the new billion, as in 'trillions lost' -- we just may have to dust it off and give a try.

by: Byron DeLear @ Fri May 22, 2009 at 12:28:06 PM CDT

[ Parent ]

something to keep in mind: (0.00 / 0)

to those who suggest that state legislatures are more corrupt than the federal legislature (in regards to convoking/convening a national convention), the political affect of doing so creates a new playing field.

in other words, think of america as two americas--the republic before the convention call is coaxed from congress, and the republic afterwards.

most americans are conditioned to accept the institutionalized corruption we are beset with these days (what else do they have to compare?). but if this constitutional mandate is popularized and executed, many, many citizens who have quite rightly turned politics off, will turn and look anew.

this is exactly what the politicians of both the federal and state legislatures fear--a renewed and reinvigorated political mindset and activism.

simply holding a nationwide special election for delegates will open up--not the constitution--but the national discourse. special interests do not want that to happen.

as an american who has travelled this land extensively, i know first-hand that when the convention clause of the constitution is explained, americans recognize almost immediately the benefits to themselves and their compatriots in exercising this constitutional right to a convention. exercising this right--whether ratification of a twenty-eighth amendment occurs or not--will do more good for the republic than skeptics might imagine. i ask anti-conventionists to think about this, think about what would happen should the country exercise this right.

thank you byron de lear and the people at foavc for all their work. i for one believe that as a republic we have reached the point where it is "convention or bust."

by: john de herrera @ Fri May 22, 2009 at 13:14:16 PM CDT

Is America Too Top Heavy?

by: Byron DeLear

Thu May 21, 2009 at 00:36:04 AM CDT