Month: April 2018

The Founders were students of politics, and history.  They read Plutarch, and learned of all the different forms of government which were adopted by the various city-states of ancient Greece.  They learned what worked, what didn’t, and why.

In the year of our Revolution, 1776, Edward Gibbon published the first volume of his masterpiece, The Decline and Fall of the Roman Empire.  The sixth and final volume was completed in 1788.  Men like Mason, Jefferson and Madison would have have been avid readers.

They knew from their knowledge of Roman history that the Twelve Tables, the Constitution of the Roman Republic, remained for 900 years the basic law of Rome.

And they knew what led to the downfall of the Republic, and its replacement by a dictatorship.  The Twelve Tables, under the Roman Emperors, were nothing but a fig leaf to their absolute power.  The end of constitutional law in Rome, and the end of the Republic, was caused by the Agrarian Revolt, which began in 145 B. C. and ended in 78 B. C.

One of its first leaders, Tiberius Gracchus, frustrated by his inability to make the reforms Rome so desperately needed, violated the Twelve Tables in his pursuit of power.  While he was eventually executed, he had set a precedent which was soon followed—  to violate the Constitution in your quest for power was now acceptable  It eventually became commonplace, and the rule of law, and the Roman Constitution, were doomed.  Caesar was just the last act.

And because they were scholars and statesmen, the Founders knew the flaw in the Twelve Tables which led to its downfall.  It couldn’t be amended.  If Tiberius Gracchus would have been able to amend the Roman Constitution, the Republic could have been reformed, and saved.

The last day of writing the Constitution was when debate on Article V took place.  The stakes were high and the argument was contentious.  The federalists, led by Hamilton, wanted only the Congress to have the power of amendment.  The states rights faction, led by Madison and Mason, wanted only the states to have the power.  A compromise was struck.  The Congress and the states would have equal power to amend.  There were still a few more matters to attend before they could adjourn, so I doubt anyone gave too much thought to the actual legislative language which resulted from their floor amendments.

When the gavel finally came down at the end of a long and exhausting day, the delegates’ work was, at long last, done.  They’d return two days later for the engrossment and the vote, but it was over.  As they read the engrossed Constitution, a quick review of Article V seemed to show that the amendment power had been equally divided between the Congress and the States.

For want of a nail, the kingdom was lost.  For want of proper legislative drafting, the hammer of federalism  —  Article V  —-was lost.

But the American Constitution, unlike the Roman, can be amended.  So the hammer can be restored, and the revival of federalism, and the Constitution, can begin.

I like to think of Mason and Madison looking down on us with approval.

If you’ve ever bothered to read the Reagan Project’s mission statement, you’ll see that it is devoted to the promotion of Article V, period.  When my sons Darren, Brendan and I started it five years ago, I had become convinced that a political wave was coming, and it would be so powerful it could make the use of Article V possible for the first time.

I didn’t want to start an organization to promote Article V, I wanted to find one to work for.  Google got me to the Convention of States site, and I called them.  When they explained that they were committed to a multi-subject amendment, I told them it would never work.  But they weren’t interested, so I needed to find another organization.

Back in 1987, as an Alaska State Representative, I attended an ALEC meeting in Orlando where I met Lew Uhler and his wife.  I wasn’t there for Lew’s Balanced Budget Amendment.  I was on the program at a workshop to make a presentation for an Article V Term Limits Amendment.  No one was interested, and that was the end of that.

26 years later, as I was trying to find an Article V group, I wondered if Lew was still around, so I called his office, he picked up and invited me to come to Sacramento to meet him.  I went, signed up with the BBA Task Force, and here I am five years later.  It’s taken me this long to figure this all out.

My friend and mentor, State Senator Bob Ziegler of Ketchikan, came to my office one day during my first year in office.  He showed me the BBA Resolution that was up on the floor the next day.  I immediately became an ardent supporter of Article V.  I was 37 years old, and I wanted to run as a Republican for the United States Senate.  If we got a term limits amendment adopted, there would be an open seat for me.

So I’ve been thinking about Article V, off and on, for 35 years.  It’s taken me this long to figure it out.  Why did they make it so damn hard to call an Amendment Convention?  Especially since the Convention, once convened, can propose an amendment with a simple majority.  That’s backwards.  What were they thinking?

It wasn’t their thinking, it was their drafting.  It was a last minute mistake, made in the rush to adjournment, by a room of exhausted and homesick men.

The most brilliant assembly of political minds in world history.  But they were not divine, they were human, and everyone makes mistakes.

They freely acknowledged that they might not have gotten everything right, and mistakes of the Framers were corrected in 1795, 1804, 1933, and 1967.  We’re just adding one to the list.

If we fail to do it, we dishonor them.

Anyone who has served in a legislature knows the perils of last minute legislation.  Time is running out, and the normal, slow pace of drafting laws is discarded.  The safeguards which prevent mistakes are abandoned in the rush to get it done while there’s still time

So it was in Philadelphia on September 15, 1787.  The delegates had been meeting for almost four months, and it was time to wrap it up.  This is the atmosphere which surrounded the adoption of Article V.  According to Madison’s notes, it was the subject of heated debate.  Several amendments were adopted, and incorporated into the Article.  They were writing Article V on the fly.

This was the final day of the Convention’s deliberations.  They met once more on September 17th, to accept one minor amendment (with his rare speech supporting the amendment, Washington assured its unanimous passage), to make speeches, and to vote.  I doubt anyone spent a whole lot of time reexamining the new version of Article V which emerged from the amendment process on the floor two days earlier.

So it is that we have a dead letter in the Constitution, caused by faulty drafting.  In all institutions of which I am aware, there is only one which requires a supermajority for a quorum, and a mere majority to act.  That is the Article V Amendment Convention.

It’s backwards, of course.  You should need a majority for a quorum in order to meet, and a supermajority to propose Constitutional amendments.  The Framers made a mistake.

The 11th, 12th, 20th and 25th Amendments were procedural in nature, correcting mistakes in the Constitution (11th, dealing with the jurisdiction of the courts [1795], 12th, presidential election procedure [1804], 20th, presidential terms [1933] and 25th, presidential succession [1967].  We need a 28th to fix Article V.

The Framers did not intend to establish a system that was dysfunctional. But that’s what they did, as shown by 229 years of state impotence in the face of federal encroachment.  Because of this fatal flaw, the role of the States in controlling Congress has been abandoned.  The results have been catastrophic.

In Reynolds v. Sims (1964) the Supreme Court stripped the states of their power to apportion their own legislatures.  It was outrageous, and Sen. Ev Dirksen of Illinois started an Article V movement to overturn it.  By 1969 he got to 33 states, one short.  Because of the fatal flaw of Article V, the states were unable to meet and propose an amendment.  The states have been neutered ever since.

Since Congress won’t act, fixing this mistake is the responsibility of the state legislatures, and their leaders.

They have the power, and it’s their responsibility.   They all swore an oath to preserve, protect and defend the Constitution.  They need to act in order to fulfill their oath and obligation.

I was eight in 1953 when we got our first television.  I remember watching a news feed at the bottom of the screen repeating endlessly the news that Stalin was dead.

“Victory at Sea”, the documentary of World War Two, made a powerful impression on me.  I can still see some of those images.  One, in particular, had a lasting effect on me.

It was footage of Jews being rounded up off the street of some German city.  One of them, I’ll never forget.  He was about my age, well dressed, and there was a certain physical resemblance.  This kid looked like me.  He was being taken to the gas chambers, and he didn’t understand what was going on.  He looked bewildered, and scared.

I was only nine, but I knew I was watching something truly evil.  And if it could happen to that kid, it could happen to me.  I never wanted that to happen, to me or to any other kid.

I quickly understood that the people that did that were Nazis, and that we had destroyed them in the war.  My Uncle Fritz helped take Berlin with the 82nd Airborne.  So they weren’t anything to worry about.

But at my grammar school, St. Cornelius, the nuns and priests told us about another type of evil, communism, that was just as bad as the Nazis,.

So, at around the age of ten, I determined to fight the Communists, and a life in politics began.

 

When George Mason insisted that the states should share with Congress the power to propose amendments, he agreed that 2/3 of the states would be needed to call an Amendment Convention.  This corresponds to the 2/3 requirement that Congress must meet in order to propose amendments.

But since 1789 no such majority has been assembled.  Mason, I believe, would be astonished.  While Congress took more and more power from the states, the states were passive.  It’s proven too difficult for the states to agree, in advance, on a solution.

The solution seems obvious.  Allow a simple majority of states to call a convention, and require 2/3 of the states (34 of 50) to propose an amendment.

I think Mason realized that the power of amendment given to the states necessarily gives them the power of amending Article V.  So if the states wish to exercise their power, they must first amend the procedures of Article V itself.

Here Mason and Madison gave Congress a means of protection.  It can require the amendment be ratified in state conventions.  So if the states are overstepping themselves, the delegates to ratification conventions can restrain them.

But, subject to the approval of the people in convention, the states are free to make the changes necessary to bring Article V to life.

They are free to empower themselves, if they wish.  What are they afraid of?