September 2019 Newsletter

• Anti-Federalists Were Patriots Too
• More Evidence Article V Needs to be Used … NOW
• Status of the US Term Limits Campaign
• Is the Tea Party Dead?
• COSP Pocket Guide is Now Available
• NYC Lawyer Says Article V Needs to be Amended
• AV Process Briefly Proposed as Gun Control Approach
• Especially Good Relate Reads

Anti-Federalists Were Patriots Too –
The Wall Street Journal recently carried an excellent piece by Jason Willick of Austin, TX, highlighting The Founders Who Opposed the Constitution.  Known as Anti-Federalists, those lesser-known founding-era leaders are actually the ones most responsible for America’s Bill of Rights.

As the writer points out, “If you talk to somebody on the street (about the US Constitution and what it protects), he might say ‘it protects my right to speech, or it protects my right to go to church, or it protects my right to petition my government,’ … ‘Or in Texas, it protects my right to keep and bear arms.’  In other words, when you mention the Constitution, most people think of the Bill of Rights.”

The article emphasizes the research work of Fifth US Circuit Court of Appeals Judge Oldham, a former clerk for Justice Samuel Alito and general counsel for the governor of Texas.  Oldham’s writings seek to elevate the importance of the so-called Anti-Federalist Papers.

The writer says “No one in the 18th century could predict the form the federal bureaucracy would take in the 20th century.  Yet the Anti-Federalists’ concerns are telling.  They worried about ‘the capaciousness of executive power,’ Judge Oldham says, comparing it to ‘the abuses of the past that they’d seen in England’.”

Serious students of the American Constitution and the system of Federalism it envisions will want to consider the alternative views of the Anti-Federalists as underscored in this article.  Read the article HERE.  Also see below (Under “Good Related Reads”) How a Gerrymander Nearly Cost Us the Bill of Rights.

More Evidence Article V Needs to be Used … NOW –
In the past month numerous writers and thought leaders have continued to emphasize the unaddressed fiscal plight of the federal government.  Click on any of the articles below to read the entire piece.

An August 14 commentary in The Daily Signal (Heritage Foundation) was headlined Ignoring the Debt Will Come Back to Bite Us.  It suggests that “The latest budget deal will increase federal deficits by $1.7 trillion over the next 10 years”

In Townhall, Joe Barnett of the The Heartland Institute wrote Budget Busting Debt Ceiling Deal Strengthens Argument for Convention of States wherein he says “Suspending the debt ceiling allows Congress to spend more wantonly than a drunken sailor.”

The Indianapolis Business Journal carried a special article by Ball State University economics professors Cecil Bohanon and Nick Curott under the heading Our spiraling debt will lead to crisis.  They point out “lawmakers are not drafting any viable proposal for addressing the looming fiscal crisis.”

The Wall Street Journal published a letter entitled The GOP and Democrats Kick the Can Again, responding to the WSJ Editorial Board’s earlier editorial entitled The Bipartisan Spending Party.  The letter bemoans the few incentives Congress has for fiscal restraint.

Another Daily Signal piece is headed Each American Is $240,000 in Debt Because of Excessive Government Spending.  This piece says “Unfunded obligations are often considered problems for future citizens, but with Medicare and Social Security both running cash flow deficits and running out of money in 2026 and 2035, respectively, these future obligations have become a current burden.”

The Foundation for Economic Education released a report entitled The Deafening Silence on Social Security’s Looming Insolvency.  It says “Social Security will become insolvent in just 16 years.  Who says so?  The people who run the Social Security Administration.”

On July 31 CATO Institute published an article under the heading New Budget Deal Reveals Need for Federal Balanced Budget Amendment which advises “Fiscal conservatives should revisit pursuing a balanced budget amendment to the U.S. Constitution.”

Another Wall Street Journal article (on August 21) was headlined Federal Deficits to Grow More Than Expected Over Next Decade, CBO Says.  The article by Kate Davidson reports that “Federal deficits are projected to grow much more than expected over the next decade after a budget agreement struck last month, pushing government debt as a share of the economy closer to the highest level since World War II, the Congressional Budget Office said”.

The Daily Signal published another warning on August 22 under the heading The Budget Is at a Crossroads.  Which Path Will Congress Take?

The author point out “The Congressional Budget Office projects public debt will rise by $11.8 trillion over the next decade.” And “Thanks to the latest massive budget deal passed by Congress, our nation’s fiscal situation is deteriorating even more quickly than before.”

The August 25 edition of the Chillicothe Gazette (Ohio – part of the USA Today Network) published a piece entitled Our National Debt Crisis.  The writer notes that his first opinion piece on this topic ran on Oct. 1, 1996 when the national debt was $5.2 trillion dollars.  In 23 years over $17 trillion has been added to the national debt.

He says “[A]t this point in time, neither major political party is offering a realistic plan to address the crisis. However, we can be assured that at some point in time there will be consequences for ignoring our increasing debt.  I, for one, don’t look forward to seeing how this crisis ends.”

Status of the US Term Limits Campaign –
Some reports are circulating that the US Term Limits (USTL) campaign is claiming to have 27 Article V state applications supporting its proposal to install term limits on Congress within the Constitution. That misinformation has its basis in a listing on The Article V Library web site under “Congressional Term Limits”.

That site lists 27 existing state applications that, in the opinion of that site operator, MAY qualify to be aggregated toward the needed 34 to trigger an Article V convention of states.  It includes 13 unrepealed plenary (non-subject limited) applications.

USTL’s web site includes a “Progress Map” showing 25 states with applications which MIGHT aggregate toward the desired convention.  However the text following the map carefully disclaims any specific number of states supporting the USTL proposal.

Nick Tomboulides, Executive Director of USTL reports: “On our website, we share information about states which have passed our application, the CoS [Convention of States Project] application which includes term limits, and plenary applications.  In a recent article for the Federalist Society journal, Rob Natelson argued that plenary applications could arguably be aggregated with applications for a specific convention. This is not certain gospel, but it is one legal theory of aggregation.  And on our site, we are clear to call it ‘one legal interpretation’ among others.”

“So, it is possible Congress and Courts will count as few as 3 applications toward a term limits convention or as many as 27, depending on the interpretation.  Since we are in uncharted legal waters we don’t know exactly what they will do.  We maintain clearly on our site that it is important to pass a single issue term limits convention in 34 states, due to uncertainty about these other approaches.”

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For reference, the Balanced Budget Amendment (BBA) Task Force has 27 or 28 (depending on legal interpretation) state applications supporting their request for an amendment-proposing convention.  Some BBA supporters believe there are another six existing plenary applications that MIGHT also aggregate toward the needed 34.

The Convention of States Project (CoSP) claimed its 14th state application supporting their multi-subject proposal when Utah adopted its application this past spring.

Is the Tea Party Dead? –
On July 31 the Conservative Review ran a story by Nate Madden entitled Rand Paul mourns ‘death’ of Tea Party, blasts both parties for budget ‘abomination’ on Senate floor.  The article reports that Sen. Rand Paul, R-Ky., took to the Senate floor to criticize the 2020-21 budget legislation for its outright fiscal recklessness and lambaste both parties for their roles in crafting it.

Paul’s speech began as a eulogy for the Tea Party movement.  “Today’s vote will be the last nail in the coffin; the Tea Party is no more,” Paul said.  “Adoption of this deal marks the death of the Tea Party movement in America.  Fiscal conservatives, those who remain, should be in mourning; for Congress — both parties — has deserted you.”

“Both parties have deserted, have absolutely and utterly deserted America, and show no care and no understanding and no sympathy for the burden of debt they are leaving the taxpayers, the young, the next generation, and the future of our country.  The very underpinnings of our country are being eroded and threatened by this debt.  The interest on this debt will be over $400 billion next year — precisely $455 billion.

“Interest will surpass all welfare spending in the next two years.  Interest on the debt will surpass defense spending by 2025. Social Security is $7 trillion in debt.  Medicare is over $30 trillion in debt.”   Read Madden’s story HERE.

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On August 15 Jenny Beth Martin, honorary chairman of Tea Party Patriots Action, came back with an article published by The Daily Caller, entitled The Tea Party Isn’t Dead. It’s More Vibrant and Essential Than Ever.

Ms. Martin’s lengthy response includes the following: “Losing a battle does not somehow mean you’re ‘dead.’  That really implies that there’s no hope and we should give up.”  And, “After a massive amount of discussion, debate, and votes with thousands of participants, we agreed to the following principles as the core values we would work to advance: fiscal responsibility, constitutionally limited government, and free markets.”  Read it HERE.

COSP Pocket Guide is Now Available –
Convention of Stations Action (an affiliate of the Convention of States Project) has issued a new 42 half-page Pocket Guide on its approach to using Article V to enact changes in the federal government.

The new publication is geared toward promoting the CoSP campaign, but it also has some good content on the background of Article V and tips on Overcoming Objections from the Opposition.  To download the Guide, one will have to enter a name and email address… and be subjected to a fundraising request.  The Guide can be downloaded HERE.

NYC Lawyer Says Article V Needs to be Amended –            
Where does the principle of “one person, one vote” come from?  It comes from a series of landmark Supreme Court decisions in the 1960s.

The July 30 edition of National Review included an article by New York City attorney/author James W. Lucas wherein he discusses the ramifications of the “one person, one vote” principle vs. “one voter, one vote”.  The difference in approaches to population counts currently amounts to substantial differences between and within states relative to citizen representation in government.  Read the National Review article HERE.

Lucas says “[R]eforms to this part of the [population counting] process may require a constitutional amendment. … Of course, any chance of enacting that or any other amendment will require a reform of Article V’s outdated and now impossible hurdles.”  Then he links to an earlier article HERE for his proposed Article V reforms.  He refers to Article V as “The Loneliest Article”.  This portion of Lucas’ writings is particularly worthy of reading.

The core of Lucas’ Article V reforms “[W]ould be to allow the states to initiate amendment proposals without having to go through a convention.”  He suggests that five states, over a maximum of four months could unite in proposing a constitutional amendment, and the other states could have up to nine years to “approve” the proposal.

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Quora, self-described as “a knowledge-sharing site” has an interesting related article wherein the author describes Article V as “a mass of errors.  Almost every part of it is wrong.”  The writer itemizes specific “errors” that he sees.

He says, “A general principle of amendments is that they should be significantly harder to pass than laws, but not so hard that they almost never happen.  Article V is way too hard, way to undemocratic, and way too eccentric.  It is probably the most difficult amendment provisions of any constitution in the world or in the 50 states.”   Read the brief article HERE.

AV Process Briefly Proposed as Gun Control Approach – 
In early August, Connecticut House Majority Leader Matt Ritter said “with Congress not acting on gun laws, it could be easier to get the support of two-thirds of the states and have a constitutional convention to get this done and bypass congress altogether.”  He was proposing a constitutional amendment to ban “assault weapons”.

A day later Ritter withdrew his proposal.  Read about his quick turnaround HERE.

Especially Good Related Reads – 

• The Forgotten Framer and Originator of the Article V Limited Convention is an excellent paper written by Ken Quinn, Regional Director with US Term Limits.  The 21-page paper highlights the contributions that 1787 Constitution convention delegates George Mason and Charles Pinckney made toward creating the American Constitution… especially to provisions they shepherded into Article V.

Quinn demonstrates why Mason should be credited with nudging Gouverneur Morris of Pennsylvania and Elbridge Gerry of Massachusetts, to move to amend the wording of Article V so as: “to require a convention on application of two thirds of the states,” providing a way states could propose future constitutional amendments without involvement of Congress.  That motion was agreed to unanimously by the convention.

The paper also credits young delegate Charles Pinckney from South Carolina who much earlier championed the idea of state conventions to propose constitutional amendments.  Some will question Quinn’s conclusions relative to limited conventions on pages 13 -16, but all can benefit from this additional information on the origins of Article V.  Read Quinn’s very interesting paper HERE.

• In the August 18 edition of Politico Magazine, Richard Labunski wrote How a Gerrymander Nearly Cost Us the Bill of Rights.  The writer chronicles how in 1788 Patrick Henry used an early form of what we now call “Gerrymandering” in an attempt to keep James Madison out of Congress under the newly adopted Constitution.

Labunski believes: “[I]f Madison’s political opponents had kept him out of the first Congress, the results would have been catastrophic: There likely would have been no Bill of Rights, then or perhaps ever…”  Read Labunski’s thought-provoking article HERE.

• Messing With the Constitution is an excellent new article by Dr. Thomas Sowell, senior fellow at the Hoover Institution (Stanford University).  It debunks clams by Article V opponents that the convention mode of proposing constitutional amendments simply constitutes “messing with the Constitution”.  Read his article HERE.

• The Constitutional Convention and Constitutional Change: A Revisionist History is a paper written by Matthew J. Steilen of the State University of New York (SUNY) and soon to be published by the Lewis & Clark Law Review.   The paper deals with how changes may be made to the federal Constitution.  The writer notes that “Article V permits both conventions and legislatures to be used for amendment, and, as it happens, all but one of the twenty-seven amendments to the Constitution have been made by legislatures.  If conventions alone represent the people in their sovereign capacity, then why don’t we actually use them to change the federal Constitution?  Are we to conclude that most of the amendments are in some way defective?”  Read an abstract of the paper HERE.

• The August 8 edition of The Epoch Times carried a commentary entitled How Our Constitution Was Supposed to Work: New Evidence Comes to Light by Constitutional Scholar Rob Natelson.  He focuses on newly published documents from America’s founding which offer more insight into how federalism was supposed to work.

Natelson notes “When the proposed Constitution became public on Sept. 17, 1787, Americans could see that the list of powers the Constitution granted the federal government was a generous one.  It encompassed nearly the entire scope of national defense and foreign affairs.  It embraced certain key economic functions, such as patents, copyrights, and trade flowing across political borders.  It included authority in certain cases to prevent states from abusing their own citizens.  The list also included authority to hold the union together.

“But the framers recognized that most problems weren’t problems the federal government could, or should, solve. That is why they left most areas of life to the exclusive responsibility of state and local governments and the private sector.”  That’s where America’s new form of federalism came in.  Read the commentary HERE.

• FreedomWorks has produced a good, short document it calls Term Limits: FAQs.  It takes 7 key questions about the Term Limit movement and offers concise answers.  Read it HERE.

• Utah State Rep. Ken Ivory has issued a report on the Federalism: Giving Power Back to The States conference hosted by the Heritage Foundation on July 17… and offers his thoughts on the importance of federalism.  Read it HERE.

A Final Thought –