Today’s Best Opportunity to Amend the Constitution of the United States

By swearing and oath to the US Constitution, state representatives become obligated to serve the interests of the whole country, not just their state.  Part of that obligation is to pursue oversight/reform of the US government per Article V. 

This has never been done.  Thus far, all amendments to our Constitution have had the full approval of the United States Congress.  But in the last decade congressional approval ratings have been very low.  No new amendments to our Constitution have been adopted in the last half century.  What should the nation do about dissatisfaction over congressional action or inaction? 

In 1973 the Bar Association stated, in reference to an Article V convention, “if the process were resorted to, it is likely would be against the backdrop of some dissatisfaction with prior congressional performance” 

Careful analysis of available data suggests that an open convention is not likely to occur.  All of the 34 state applications to an Article V convention would need to state that their intention was to have an open convention.  Few such applications have occurred in the last half century.  Therefore it is highly likely that the Article V convention would be a limited convention. 

And even if we get approval from 34 states; that only allows one issue to be valid at the A-5 convention.  Legal opinions from the Justice Department show that only that issue could be advanced to the states for ratification.  That would dampen the overall level of enthusiasm by the public, the press, and those states that have limited interest in supporting an issue that may have been initiated by the opposing faction.  A plenary convention is only possible if 34 states apply for a plenary convention in their applications.  But the public favors change and the timing for amending our Constitution is upon us.  Perhaps we should walk down a different path. 

It may be helpful to translate the opportunities that lie in front of us into terminology that is consistent with the operation of government.  An Article V convention is akin to a committee of the legislative branch of our federal government.  Each state legislature essentially has one committee member.

Legal restrictions have indirectly limited open discussion in this committee. Committee members are geographically separated.  Since the committee has never been called to order, full knowledge of the process, by state legislators, is lacking.  Actions by the committee may have legal challenges.  Recent history has shown that the overall challenge is too big.  The task is too onerous.  When we look at the sentiments of the nation we find several topics of concern.  Dealing with each topic with one A-5 convention at a time is not realistic because of the logistics of setting up and executing the details.

Facing a difficult challenge it is often necessary to break down the problem into smaller components or smaller tasks.  Procuring 34 similar applications prior to the A-5 convention may be too big of a hurdle.  Our Founders may not have fully perceived the difficulty of the process.  Or they may have just left it up to our generation to sort out the problem. 

Whether it is a state legislature or a legislative branch of the federal government, by the time the measure gets to the floor for debate, most of the work has been completed.  When a committee sends the measure to the floor for a vote, and the large majority of the committee favors the measure, the measure is often approved.  Approval is even more likely if the committee has had extensive communications with the rest of the legislative body during the process of developing the details of the measure.  Much of the hard work is done in committee. 

We should not expect that most of the hard work at an A-5 convention should be done on the convention floor.  The convention floor should be used for refining the measure and voting on it, just like the floor of other legislative bodies.  So our problem is what path should be taken to get multiple potential measures, mostly completed, to the floor of the A-5 convention.  Individual organizations do not have that capability and are generally concerned with only one potentially partisan measure.  Individual States lack the appropriate level of communication with other States.  Their applications are not properly refined. 

If we compare this process to a typical legislative process, we find a missing step.  Individual states are effectively members of a government reform committee. Individual organizations lobby just one member of that committee and typically deal with just one issue.  Successfully lobbying 34 committee members on multiple issues, while the members are widely separated geographically, is a daunting task.  The task for individual organizations, in spite of widespread public support for the issue, is too great. 

Individual states are not equipped to act as an effective government reform committee.  Since the committee has never been called to order, individual members of state legislatures may be oblivious to the existence and function of this committee.  And communication with other legislatures (committee members) is not part of their anticipated job description.  The Constitution is requiring states to approve a measure or multiple measures without a mechanism for proper vetting.  The missing step is the mechanism for proper issues vetting prior to the filing of an application to an A-5 convention. 

When a task is daunting, it is often necessary to break down the task into smaller components.  One large component, an A-5 convention, may not be adequate to get over the high bar. 

A three step process is suggested here.  The objective is to produce well vetted measures for the floor debate at the A-5 convention.  The convention is step three.  Step two is approval by 34 State legislatures.  Step one is calling the government reform committee (pre-convention) to order. 

Calling the committee to order is not an A-5 convention.  But it is part of the legislative process needed to amend the Constitution.  Realistically it is the part where the hard work is accomplished.  Vetting of issues occurs at this sub-committee meeting.  It is a pre-convention meeting but that label undersells the function of the gathering.  It may be the best path to successful government reform/oversight. 

The government reform committee functions in a plenary manner.  Constitutional restrictions on an A-5 Convention do not apply.  Discussion of multiple issues is at the option of the state delegates.  Operation of the committee may be similar to any other committee in any branch of state or national legislature. 

Those issues that come out of committee go to the state legislatures for approval which in this case is an application to an A-5 convention.  Therefore is would be prudent for each delegation from each state to fully communicate with their respective legislative leaders prior to casting votes in committee.  The process of vetting proposals and communicating with state leader may be lengthy but this is the hard work required to achieve success. 

With prudent action by individual state delegations, approval by 34 delegations will result in 34 state applications for an A-5 convention.  The number of approved issues is at the discretion of the committee.  (Obviously, existing relevant applications will count toward 34 needed.)

We may expect that the duration of an A-5 convention to be shorter than the time needed to do the legwork needed by the government reform committee meeting.  Actions at the A-5 Convention may be limited to refining the final language of proposals that already have approval of a super-majority of state delegations. 

The concept of doing the hard work at the government reform committee (pre-convention) must be fully understood by each state legislature.  The Founders did not give us a 50 state path to amend the Constitution and bypass Congress.  They trusted that when public sentiment favored reform, we would find our own way. 

It is not a trial run.  The government reform committee will be vetting amendments to the Constitution.  All States should want to participate so that their vote will be counted.  If a state opposes the process or a specific amendment, then let them vote their intentions rather than boycott the process.  Not showing up for this gathering is akin to not sending your Senators to Washington D.C.  It’s all part of the same process. 

What is truly needed is an organized robust debate in a setting that has constitutional implications.  

To add full legitimacy to the process, the pre-convention should be opened by the Vice-President of the United States. 

No partisanship

No appearance of impropriety

No heavy handed actions

Maximize transparency

This is representative democracy in action.

Voter Suppression

What part of the phrase ‘all men are created equal’ allows State governments the right to disenfranchise some of its voters?

The answer is technical and disturbing.  The phrase was written into the Declaration of Independence which essentially laid out the guiding principles of our government.  The facts of the law, according to the Unites States Supreme Court, are written in the Constitution.   The implication is obvious.  Apparently, the Founders decided over the few years between the signing of the Declaration of Independence and the adoption of the Constitution that the principles laid out in our founding document should be discarded. 

But that is not the case for two reasons.  First the Constitution does not specifically state that the disenfranchisement of some of the voters is unconstitutional.  Secondly, no one that approved adoption of the Constitution ever stated that it should follow the principles laid out in the Declaration of Independence.  It is implied, but not stated.  Implied does not create law.

The evolution of the interpretation of the law has been twisted and bastardized for over two centuries.  Moral guideposts are at the discretion of the better angels or darker angels of government. 

Our forefathers fought to defend our representative democracy.  As we examine the Democracy Index we find that one of the main yardsticks used measure ‘full democracy’ is free and fair elections.  All forms of voter suppression moves our country down on the yardstick that measures ‘full democracy’. 

We have a choice.  We can let the forces that persist in disenfranchising voters continue to harm basic democratic principles.  Or we can pass a Constitutional amendment that bans all forms of voter suppression.  Our Founders had the right idea but did not cement the idea into the Constitution.  It’s time to put those guiding principles into law. 

Justice Department Reform

If the majority is allowed unrestricted rule, the slide toward dictatorship is inevitable.  When the Senate and the justice department become pawns owing full allegiance to the President, our current system of checks and balances do little to restrict Presidential power.  And once the precedent has been set, it remains in place and is not reversed by future Presidents.  When the justice department is coerced into never investigating wrongdoing by the President, he is effectively above the law.  There is no law that prevents the United States Attorney General from pledging loyalty to the President. 

Careful study of our Constitution shows that supervision of the executive branch of our government can only be done by the States by use of Article V.  

Oversight of the President cannot properly occur if the Attorney General has control over investigations of Presidential wrongdoing.  Ultimate authority must be shifted to the States.  Our best opportunity to investigate wrongdoing by the President or his inner circle still remains with our federal justice system but the party making the decision on who is investigated and the extent of the investigation must shift away from the Attorney General. 

Both the Ken Starr investigation and the Robert Mueller investigation were seriously tainted by partisan influence.  Even the appointment of these special investigators was politically influenced.  So long as the majority party is in charge of the investigative process, true justice may be nebulous. 

The most important question is who can serve as a trusted semi-independent prosecutor.  In a federalist system, the States have a shared governing responsibility.  In the case of oversight of the executive branch of government, the best state level prosecutors may be considered.  Partisanship among the States is similar to partisanship in Congress but the difference is that state level prosecutors have not pledged loyalty to the President. 

Selection of a semi-independent prosecutor must be left to the States.  Certainly, the pool of potential prosecutors begins with the 50 attorneys general.  One political faction usually has a majority so in order to achieve a semi-independent result; a supermajority of states may be needed to weed out the most biased candidates. 

Selection of a semi-independent prosecutor would be a substantial process.  Therefore use of this special prosecutor must not be taken lightly.  Logically, it would be initiated by members of the federal government and not by potentially biased State factions.  Yet we cannot wait for a majority of Congress to initiate action because that majority may have loyalty to the President.  Therefore we must consider the initial premise, if the majority is allowed unrestricted rule, the slide toward dictatorship is inevitable. 

The States will decide if the need is sufficient to appoint a prosecutor.  And elected officials in the States will live with the fallout of the decision to appoint or not appoint the special prosecutor.  Ultimately, the decision on taking action will be up to the prosecutor.  Evidence supplied to the prosecutor by members of our government (suggesting member of Congress) will be weighed. (Consider that if only 2 Senators seek a special State prosecutor, that may not be enough, allowing radicals too much power, and if the bar is set too high and 40 Senators are required, that may diminish the opportunity for justice.  10 Senators, representing at least 5 states, or 10% of a legislative body is substantial.) 

This process may be cumbersome, but it does not place a substantial financial burden on the federal budget.  And once the process is in place, the propensity of members of the executive branch of government to break the law will be diminished. 

Massive reports are made at the request of politicians for consumption by politicians.  The State’s prosecutor acts on the basis of laws that may be violated.  Results will be conclusions as to whether specific laws have been violated.  Opinions as to whether a President should be impeached will be beyond the scope of work of the prosecutor. 

The special prosecutor will seek to convict all parties found guilty.  All of the powers of the United States Attorney General will be vested in the special prosecutor during this process. Sentencing will be carried out for all except the President.  In the case of the President, sentencing recommendations, with the assumption that the President is not in office, will be given to Congress. 

The Humility of the Founders

​As good as the US Constitution was at the time of its writing, the authors knew it could be made better- they added Article V.

The Constitutional Convention that convened in Philadelphia in 1787 was an eloquent demonstration of democracy at work.  There were a number of leading citizens among the delegates, but if the group had entrusted the job of writing the new Constitution to one or more of their impressive intellects, it is likely that a United States would not have emerged from the conclave.  They perceived that they must, as a group, listen to the ideas suggested by each and every delegate and arrive at a consensus on all of the issues presented.  They knew that they would need to compromise on some strongly-held beliefs if they were to be successful in creating a new republic.  And compromise they did.  They showed the world that democracy can work.

Was the ultimate product of their labors perfect?  Of course not, but it was a significant step forward in mankind’s quest for freedom from the tyrannical forms of government that had dominated peoples around the world throughout recorded history.  The experience of the founders brings to mind the old adage that “perfection is the enemy of the good.”  They knew this to be true, and produced a serviceable, good product that launched the American Experiment on the world stage.  It embraced a fundamental conviction that mankind is capable of self-government in a system that provides substantial freedom for the individual.  It introduced to the world two core values for a government:  (1) maximum personal freedom for its citizens consistent with the observance of the equal rights of one’s fellow citizens and of national security considerations, and (2) the natural, inherent worth of every individual in society.  These perceptions had been slowly growing in human consciousness for hundreds of years; our founders seized the opportunity to act on them as they carved out a new society in the new world of North America.  And, as the cliché goes, the rest is history.

But you, the reader, know all this . . . the purpose of this essay is to point to a small act of humility by the founders that was truly prescient:  the eleventh-hour addition of Article V to the Constitution which provided for its amendment in the future.  By this act, the founders were acknowledging that the document they labored so hard to create was the best they could do under the circumstances of the day, but that it was not perfect and there must be provision for its amendment.

With the ink on the new Constitution hardly dry, the wisdom of this was readily apparent as the states considered its ratification.  It was quickly agreed that, while personal freedoms were implicit in the document it would be wise to set them out explicitly to make them abundantly clear.  The first ten amendments (which we collectively refer to as our Bill of Rights) were quickly written and promptly ratified pursuant to Article V, and the Constitution had survived its first crisis.  It emerged a significantly improved document.

Today, our republic is dysfunctional and in dire need of repair.  But we face resistance to reform changes from two groups:  those who fear that changes to address problems could result in a loss of personal power, and those patriots who idolize the founders and insist that the founders’ work cannot be improved.  But the founders themselves refuted this form of adulation and acknowledged their humility by giving us Article V, so we must overcome this opposition.  First, we must recognize that the lust for power has a very destructive impact on the republic, and second we must help the patriots to see that their actions to block repairs are damaging to the very Constitution and republic they profess to love. 

Were the founders insightful?  Absolutely.  Infallible?  Of course not.  Audacious?  Yes, launching the American Experiment took great courage and trust in their fellow man.  Humble?  Most certainly, and we should be eternally grateful for that humility, which made the Experiment possible.

We must convince the patriots that, as a society, we are capable of rational self-government while protecting our precious freedoms; they must learn to trust the collective wisdom of the people but distrust the personal hubris that seems to drive many of our political elites.  These elites believe that their intellect should be recognized as superior to the collective wisdom of the people, so they should be entrusted with the authority to direct the national political dialogue.  But the founders had fought a war to free our country from the elite who ruled the British colonies in America and did not trust them to govern fairly.  Instead,  they included Article V because they trusted the wisdom of the People when they launched the American Experiment in democracy, and we need to prove that their confidence was not misplaced.  We have the power; we must exercise that power and act now!

This article was found on the Path to Reform website.

Article V

Each State legislator is part of a standing committee of the legislative branch of the federal government.  Calling an Article V convention brings the committee to order.  The fact that the committee has never met is irrelevant in Constitutional law. 

State legislators may not fully comprehend the ways that Article V can be used to improve flaws in our government.  The Constitution allows them to bypass Congress and the special interests that have Congress in their grip.  It can be argued that, if America seeks to improve our national government, State legislators have not only an opportunity, but an obligation to do so. 

It all starts with the principles laid out in the Declaration of Independence; ‘consent of the governed’ and our right to change our government.  The Constitution lays out our framework of laws and sets out Article V as the instrument with which our government can be changed.  George Washington’s Farewell Address provides practical guidance.  He emphasizes ‘checks and balances’ and ‘separation of powers’ to prevent despotism and urges restraint of political parties. 

Alexander Hamilton (writing in The Federalist #85) argued that the second part of Article V would enable state legislatures to “erect barriers against the encroachments of the national authority”

Article I of the Constitution gives Congress extensive power to adopt legislation.  It deals with most issues but fall short on one issue.  It cannot effectively oversee itself.  The Constitution, by default, gives that oversight to the States.  Since Congress also has the ultimate power over the Supreme Court and the Executive branch of government, general oversight over the entire government also defaults to the States. 

George Washington’s Farewell Address was written over a long time frame and assistance was given by James Madison and Alexander Hamilton.  It lays out the Founding Fathers practical perspective of the function of government and the pitfalls inherent in our representative democracy.  Most would agree that, thus far, this government has stood the test of time and States oversight has not been necessary.  History has demonstrated that true oversight of our government has been, in part, due to the better angels of human nature.  And this has contributed to our longevity. 

In recent history, a Democracy Index has been developed.  It compares the level of democracy in each government.  Of the 167 regimes we now rank 26th best for highest level of democracy. The parameters of ranking are closely associated with the issues laid out by Washington.  Clearly Washington hoped that our government would be near the top of such a ranking system. 

But we are not in the top tier of democratic countries.  Of the four systems of ranking, we are only second best.  The ranking system (Democracy Index) is detailed and based out of the United Kingdom.  And our rank has been recently declining.  We are now rated a Flawed Democracy.    

When we, as a country, find that we are no longer a ‘shining city on a hill’ or a ‘beacon of democracy’ and our government is not appropriately responsive to the will of the people, it’s time for a change.  When we find that we are sliding down the democracy index and picking up additional traits found most commonly in flawed democracies and hybrid regimes, it’s time for a change. 

Here’s George Washington’s advice: “If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation…”  Clearly, Washington is referring to Article V.  And if a series of elections have not corrected the wrong, then the only other Constitutional option is the second part of Article V; oversight by the States. 

An Article V convention could also be named the Government Oversight Committee. Its function is to propose amendments to the Constitution.  Its practical purpose is to provide oversight over the branches of government for issues where Congress is not as likely to provide that oversight.  Indeed, congressional oversight may be subject to self-interest, partisanship, or the influence of special interests.

In Congress, our better angels of human nature are sometimes hijacked by greed and lust for power and fame while abandoning the principles laid out in the Declaration of Independence.  State representatives are more separated from federal government influence and their better angels of human nature may act independently.

It’s been a half century since the Constitution was amended.  Congressional approval ratings are at historical lows. 

If we do indeed believe that our democracy is sliding down the Democracy Index and away from the principles that were laid out by the Founding Fathers, and that we want to stop or reverse that trend, then the logical step is to call the Government Oversight Committee to order. 

Thus far, all efforts to open the convention doors have failed. 

In the past, the first part of Article V was effectively used to amend the Constitution. Polarization now has a firm grip on the United States Congress.  Use of the first part of Article V as a method to correct government flaws is unlikely in this environment.  Because of the high level of polarization, an increasing number of issues are seen as partisan issues.   Substantial discussions of amending the Constitution, for any reason, have not been on the table for many years. The potential numbers of issues that may best be handled by the Oversight Committee have increased. 

Failure to open the convention doors is due primarily to the lack of political will.  Political will has been lacking due to the perceived lack of necessity.  But other factors are also relevant. 

The public and State legislators are not fully informed.  Media attention to this government oversight opportunity has been scarce to non-existent.  Partisan efforts to open the convention doors have caused fear from opposing factions and this has poisoned the atmosphere.  Leadership and organized efforts between States has been scarce. 

Ultimately, it comes down to two factors.  First, State legislators must choose to pursue oversight of the federal government.  Secondly, State legislators must be willing to consider non-partisan measures.  The overall objective may be stated as government oversight as intended by the framers of the Constitution, not just passage of an individual proposal. 

In order to gain approval of 38 states and pass a Constitutional amendment, the measure will necessarily be non-partisan.  This is because each faction in our two-party political system has enough States to block a partisan measure.  A proposed amendment needs to benefit the large majority of Americans, not just one faction. 

If the measure must end up being non-partisan, then why should we not start it out in a non-partisan fashion?  It is doubtful that any group will ever amend our Constitution by making a partisan statement. 

Perhaps the bar is too high.  Gaining approval from 34 States has shown to be awkward and disorganized process.  In the era of the Founders, only 9 States were needed to open an Article V convention, and they were all located in the same geographical region.  If the true objective is to seek oversight over the federal government, then we must seek a non-partisan solution that clears this high bar.  The tools are in the toolbox.  We just need to work together instead of attempting an all-out assault with just one (potentially partisan) issue. 

Different States have submitted applications with varying proposals to amend the Constitution.  Individually, the proposals may seem to be partisan ploys.  But if the proposals were all lumped together, the lumped proposal would be far less partisan.  The agenda at the convention would be expanded.  And if this makes the act of opening the convention doors more likely, then this is an appropriate step toward the goal of government oversight. 

The act of opening the doors of an Article V convention sends a message to the entire federal government.  The message is that the branches of federal government do not have unlimited power because the States have an oversight function.   That alone makes despotism, as described by George Washington, less likely.  And if we do not open the convention, it empowers those who seek a government that is lower on the Democracy Index.  Each time that an issue is debated at the convention, it is an exercise in government as intended by the Founders. 

Those debates set national precedent and the press will take notice.  Media coverage emboldens the process and informs the public on those issues.  Without the conventions, those issues may not gain public attention.  Washington argued that “the American government needs to ensure “the general diffusion of knowledge throughout the United States; the government has been created to enforce the opinion of the people, so the opinion of the people should be informed and knowledgeable”

The convention may attract more statesmen and fewer political pundits.  Non-partisan debates can send a non-partisan message in a partisan arena. 

It may not be important that any specific issue be debated.  What is important is that important issues are being debated and that those issues that ultimately truly concern the public will be vetted.  Adoption of an amendment to the Constitution is a result of public will. 

Our Constitution provides only one legal and authorized method of supervision over the federal government.  A bundled application may be the best opportunity to engage that oversight.  If the national sentiment is to exercise federal oversight, then State legislators must make a choice.  Each State legislator pledges allegiance to the flag of the United States of America.  Americans expect them not to pledge allegiance to a State Flag or a party banner.  Their non-partisan support will open the doors of the Article V convention.    State legislators may choose to vote for a measure that creates that oversight, even if they do not have a strongly favored proposal to be vetted at the convention. 

Fear and misunderstanding contribute to the lack of political will.

Although the Constitution does not state that the purpose of an Article V convention is government oversight, that purpose is most logical at this time.   In theory, the entire structure of government could be changed at an Article V convention, but that notion has no support from the public.   Indeed, in the past 100 years, no state has applied to an A-5 convention for the purpose of achieving a major restructuring.  Recent application topics have dealt with:

Fiscal restraints

Term limits

Balanced budget

Campaign finance reform

Countermand amendment

Those that spread fear of a ‘runaway convention’ may have a vested interest in preventing the A-5 convention.  All those associated with the federal government may oppose their own oversight and promotion of the term ‘runaway convention’ may be in their best interest.  Any change to the status quo is bound to bring out paid pundits to stand in opposition.  From a practical non-partisan viewpoint, any measure that is approved by 38 State legislatures must be good for the country. 

Attempts at holding an A-5 convention for one issue have failed.  This method lacks communication between states that could occur after the doors were opened.  Instead of limiting the convention to discussion of one issue, the convention can be called for all of the recent issues for which States have issued applications.  That would bring state legislators (often from different political parties) together for discussion. It would also create necessary media exposure. It is easy pickings for naysayer propaganda when the public is left out of the main conversation.   Success in adopting a new amendment to our Constitution is not assured but A-5 convention will initiate a national conversation on specific issues and that conversation will directly or indirectly lead to better government. 

If all of the topics on applications in the last seven years were bundled, we would have the five topics shown above. 

A structured application would serve three functions.  First, by naming topics it would serve the legal obligation to provide the reasons for the application.  And at least one of those topics mustbe reasonably matched to obtain the 34 state applications on the same topic necessary to open the convention. 

Secondly, the State may lay out its expectations for the convention.  A limited convention is likely to be most desirable.  Laying out the limitations of the convention may serve to encourage State legislators to approve the application.  Limitations may include only allowing a vote on those topics where applications have been recently submitted.  For reasons of conflict of interest, those who have close ties to the federal government may not be allowed as delegates at the convention.  Any and all potential limitations may be discussed in advance prior to the submission of the application. 

Thirdly, the State may lay out its intended actions if its expectations for conduct at the convention are not met.  A State may withdraw from the convention at any time.  If many States had similar withdrawal threats in their applications, the structure of the convention would be limited. A stated intention to withdraw from the convention for reasons related to a ‘runaway convention’ would act as a deterrent for radical actors at the convention and therefore encourage State legislators to approve the application. 

Fear of a too-specific amendment may cause Congress to act (perhaps to water down the language and make it more desirable to congressional interests).  History has shown that theprospect of an A-5 convention has caused Congress to initiate action on many Constitutional amendments.

Many of the issues in the bundle may never be addressed by Congress especially if they deal directly or indirectly with Congressional power, or congressional perks.  It’s basic human nature that the federal government wants to legislate itself more power while giving the states less power. 

A well-functioning government should take away those factors that cause loyalty to the party to supersede loyalty to the country.  “political parties must be restrained”.  Thus far the only restraint of political parties has been due to the better angels of our human nature.   If hyper partisanship has recently had a negative influence on the better angels of our government, then oversight by those not directly connected to the federal government is a logical course of action. 

Someone’s ox will be gored.  Powerful interests already in place may lose some of their power if we move up the yardstick of Democracy.  Paraphrasing the Declaration of Independence, ‘government should not be changed for light and transient causes but when a long train of abuses leads in the direction of despotism, it is our right, it is our duty, to make the necessary changes’.  When attempting to accomplish those changes, we cannot let the interests of the few dominate the interest of the majority.   

If we wish to avoid a drift toward despotism, as described by Washington, we must address these issues of separation power.  Today’s federal legislative branch of government is not addressing these issues and therefore puts our representative democracy in danger.  Article V provides State legislators an opportunity to halt the drift. 

As government evolves over time, we face the prospect that it may move away from our Founder concept of ‘consent of the governed’.  The best oversight option provided by our Constitution is Article V.  Prudent use of this option should be seriously considered in these challenging times.

Dale Leitzke

Each State legislator is part of a standing committee of the legislative branch of the federal government.  Calling an Article V convention brings the committee to order.  The fact that the committee has never met is irrelevant in Constitutional law. 

State legislators may not fully comprehend the ways that Article V can be used to improve flaws in our government.  The Constitution allows them to bypass Congress and the special interests that have Congress in their grip.  It can be argued that, if America seeks to improve our national government, State legislators have not only an opportunity, but an obligation to do so. 

It all starts with the principles laid out in the Declaration of Independence; ‘consent of the governed’ and our right to change our government.  The Constitution lays out our framework of laws and sets out Article V as the instrument with which our government can be changed.  George Washington’s Farewell Address provides practical guidance.  He emphasizes ‘checks and balances’ and ‘separation of powers’ to prevent despotism and urges restraint of political parties. 

Alexander Hamilton (writing in The Federalist #85) argued that the second part of Article V would enable state legislatures to “erect barriers against the encroachments of the national authority”

Article I of the Constitution gives Congress extensive power to adopt legislation.  It deals with most issues but fall short on one issue.  It cannot effectively oversee itself.  The Constitution, by default, gives that oversight to the States.  Since Congress also has the ultimate power over the Supreme Court and the Executive branch of government, general oversight over the entire government also defaults to the States. 

George Washington’s Farwell Address was written over a long time frame and assistance was given by James Madison and Alexander Hamilton.  It lays out the Founding Fathers practical perspective of the function of government and the pitfalls inherent in our representative democracy.  Most would agree that, thus far, this government has stood the test of time and States oversight has not been necessary.  History has demonstrated that true oversight of our government has been, in part, due to the better angels of human nature.  And this has contributed to our longevity. 

In recent history, a Democracy Index has been developed.  It compares the level of democracy in each government.  Of the 167 regimes we now rank 26th best for highest level of democracy. The parameters of ranking are closely associated with the issues laid out by Washington.  Clearly Washington hoped that our government would be near the top of such a ranking system. 

But we are not in the top tier of democratic countries.  Of the four systems of ranking, we are only second best.  The ranking system (Democracy Index) is detailed and based out of the United Kingdom.  And our rank has been recently declining.  We are now rated a Flawed Democracy.    

When we, as a country, find that we are no longer a ‘shining city on a hill’ or a ‘beacon of democracy’ and our government is not appropriately responsive to the will of the people, it’s time for a change.  When we find that we are sliding down the democracy index and picking up additional traits found most commonly in flawed democracies and hybrid regimes, it’s time for a change. 

Here’s George Washington’s advice: “If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation…”  Clearly, Washington is referring to Article V.  And if a series of elections have not corrected the wrong, then the only other Constitutional option is the second part of Article V; oversight by the States. 

An Article V convention could also be named the Government Oversight Committee. Its function is to propose amendments to the Constitution.  Its practical purpose is to provide oversight over the branches of government for issues where Congress is not as likely to provide that oversight.  Indeed, congressional oversight may be subject to self-interest, partisanship, or the influence of special interests.

In Congress, our better angels of human nature are sometimes hijacked by greed and lust for power and fame while abandoning the principles laid out in the Declaration of Independence.  State representatives are more separated from federal government influence and their better angels of human nature may act independently.

It’s been a half century since the Constitution was amended.  Congressional approval ratings are at historical lows. 

If we do indeed believe that our democracy is sliding down the Democracy Index and away from the principles that were laid out by the Founding Fathers, and that we want to stop or reverse that trend, then the logical step is to call the Government Oversight Committee to order. 

Thus far, all efforts to open the convention doors have failed. 

In the past, the first part of Article V was effectively used to amend the Constitution. Polarization now has a firm grip on the United States Congress.  Use of the first part of Article V as a method to correct government flaws is unlikely in this environment.  Because of the high level of polarization, an increasing number of issues are seen as partisan issues.   Substantial discussions of amending the Constitution, for any reason, have not been on the table for many years. The potential numbers of issues that may best be handled by the Oversight Committee have increased. 

Failure to open the convention doors is due primarily to the lack of political will.  Political will has been lacking due to the perceived lack of necessity.  But other factors are also relevant. 

The public and State legislators are not fully informed.  Media attention to this government oversight opportunity has been scarce to non-existent.  Partisan efforts to open the convention doors have caused fear from opposing factions and this has poisoned the atmosphere.  Leadership and organized efforts between States has been scarce. 

Ultimately, it comes down to two factors.  First, State legislators must choose to pursue oversight of the federal government.  Secondly, State legislators must be willing to consider non-partisan measures.  The overall objective may be stated as government oversight as intended by the framers of the Constitution, not just passage of an individual proposal. 

In order to gain approval of 38 states and pass a Constitutional amendment, the measure will necessarily be non-partisan.  This is because each faction in our two-party political system has enough States to block a partisan measure.  A proposed amendment needs to benefit the large majority of Americans, not just one faction. 

If the measure must end up being non-partisan, then why should we not start it out in a non-partisan fashion?  It is doubtful that any group will ever amend our Constitution by making a partisan statement. 

Perhaps the bar is too high.  Gaining approval from 34 States has shown to be awkward and disorganized process.  In the era of the Founders, only 9 States were needed to open an Article V convention, and they were all located in the same geographical region.  If the true objective is to seek oversight over the federal government, then we must seek a non-partisan solution that clears this high bar.  The tools are in the toolbox.  We just need to work together instead of attempting an all-out assault with just one (potentially partisan) issue. 

Different States have submitted applications with varying proposals to amend the Constitution.  Individually, the proposals may seem to be partisan ploys.  But if the proposals were all lumped together, the lumped proposal would be far less partisan.  The agenda at the convention would be expanded.  And if this makes the act of opening the convention doors more likely, then this is an appropriate step toward the goal of government oversight. 

The act of opening the doors of an Article V convention sends a message to the entire federal government.  The message is that the branches of federal government do not have unlimited power because the States have an oversight function.   That alone makes despotism, as described by George Washington, less likely.  And if we do not open the convention, it empowers those who seek a government that is lower on the Democracy Index.  Each time that an issue is debated at the convention, it is an exercise in government as intended by the Founders. 

Those debates set national precedent and the press will take notice.  Media coverage emboldens the process and informs the public on those issues.  Without the conventions, those issues may not gain public attention.  Washington argued that “the American government needs to ensure “the general diffusion of knowledge throughout the United States; the government has been created to enforce the opinion of the people, so the opinion of the people should be informed and knowledgeable”

The convention may attract more statesmen and fewer political pundits.  Non-partisan debates can send a non-partisan message in a partisan arena. 

It may not be important that any specific issue be debated.  What is important is that important issues are being debated and that those issues that ultimately truly concern the public will be vetted.  Adoption of an amendment to the Constitution is a result of public will. 

Our Constitution provides only one legal and authorized method of supervision over the federal government.  A bundled application may be the best opportunity to engage that oversight.  If the national sentiment is to exercise federal oversight, then State legislators must make a choice.  Each State legislator pledges allegiance to the flag of the United States of America.  Americans expect them not to pledge allegiance to a State Flag or a party banner.  Their non-partisan support will open the doors of the Article V convention.    State legislators may choose to vote for a measure that creates that oversight, even if they do not have a strongly favored proposal to be vetted at the convention. 

Fear and misunderstanding contribute to the lack of political will.

Although the Constitution does not state that the purpose of an Article V convention is government oversight, that purpose is most logical at this time.   In theory, the entire structure of government could be changed at an Article V convention, but that notion has no support from the public.   Indeed, in the past 100 years, no state has applied to an A-5 convention for the purpose of achieving a major restructuring.  Recent application topics have dealt with:

Fiscal restraints

Term limits

Balanced budget

Campaign finance reform

Countermand amendment

Those that spread fear of a ‘runaway convention’ may have a vested interest in preventing the A-5 convention.  All those associated with the federal government may oppose their own oversight and promotion of the term ‘runaway convention’ may be in their best interest.  Any change to the status quo is bound to bring out paid pundits to stand in opposition.  From a practical non-partisan viewpoint, any measure that is approved by 38 State legislatures must be good for the country. 

Attempts at holding an A-5 convention for one issue have failed.  This method lacks communication between states that could occur after the doors were opened.  Instead of limiting the convention to discussion of one issue, the convention can be called for all of the recent issues for which States have issued applications.  That would bring state legislators (often from different political parties) together for discussion. It would also create necessary media exposure. It is easy pickings for naysayer propaganda when the public is left out of the main conversation.   Success in adopting a new amendment to our Constitution is not assured but A-5 convention will initiate a national conversation on specific issues and that conversation will directly or indirectly lead to better government. 

If all of the topics on applications in the last seven years were bundled, we would have the five topics shown above. 

A structured application would serve three functions.  First, by naming topics it would serve the legal obligation to provide the reasons for the application.  And at least one of those topics mustbe reasonably matched to obtain the 34 state applications on the same topic necessary to open the convention. 

Secondly, the State may lay out its expectations for the convention.  A limited convention is likely to be most desirable.  Laying out the limitations of the convention may serve to encourage State legislators to approve the application.  Limitations may include only allowing a vote on those topics where applications have been recently submitted.  For reasons of conflict of interest, those who have close ties to the federal government may not be allowed as delegates at the convention.  Any and all potential limitations may be discussed in advance prior to the submission of the application. 

Thirdly, the State may lay out its intended actions if its expectations for conduct at the convention are not met.  A State may withdraw from the convention at any time.  If many States had similar withdrawal threats in their applications, the structure of the convention would be limited. A stated intention to withdraw from the convention for reasons related to a ‘runaway convention’ would act as a deterrent for radical actors at the convention and therefore encourage State legislators to approve the application. 

Fear of a too-specific amendment may cause Congress to act (perhaps to water down the language and make it more desirable to congressional interests).  History has shown that theprospect of an A-5 convention has caused Congress to initiate action on many Constitutional amendments.

Many of the issues in the bundle may never be addressed by Congress especially if they deal directly or indirectly with Congressional power, or congressional perks.  It’s basic human nature that the federal government wants to legislate itself more power while giving the states less power. 

A well-functioning government should take away those factors that cause loyalty to the party to supersede loyalty to the country.  “political parties must be restrained”.  Thus far the only restraint of political parties has been due to the better angels of our human nature.   If hyper partisanship has recently had a negative influence on the better angels of our government, then oversight by those not directly connected to the federal government is a logical course of action. 

Someone’s ox will be gored.  Powerful interests already in place may lose some of their power if we move up the yardstick of Democracy.  Paraphrasing the Declaration of Independence, ‘government should not be changed for light and transient causes but when a long train of abuses leads in the direction of despotism, it is our right, it is our duty, to make the necessary changes’.  When attempting to accomplish those changes, we cannot let the interests of the few dominate the interest of the majority.   

If we wish to avoid a drift toward despotism, as described by Washington, we must address these issues of separation power.  Today’s federal legislative branch of government is not addressing these issues and therefore puts our representative democracy in danger.  Article V provides State legislators an opportunity to halt the drift. 

As government evolves over time, we face the prospect that it may move away from our Founder concept of ‘consent of the governed’.  The best oversight option provided by our Constitution is Article V.  Prudent use of this option should be seriously considered in these challenging times.

Dale Leitzke

Mission Statement

Our story starts with the principles laid out in the Declaration of Independence; ‘consent of the governed’ and our right to change our government.  The Constitution lays out our framework of laws and sets out Article V as the instrument with which our government can be changed.  George Washington’s Farewell Address provides practical guidance.  He emphasizes ‘checks and balances’ and ‘separation of powers’ to prevent despotism and urges restraint of political parties. 

Alexander Hamilton (writing in The Federalist #85) argued that the second part of Article V would enable state legislatures to “erect barriers against the encroachments of the national authority”

An Article V convention is effectively a standing committee in the legislative branch of our government.  It has never been called to order for two reasons.  First is the spread of misleading information about the true purpose of the committee.  Second is the lack of existing structure of the committee.  The committee’s broadly defined function is to propose amendments to the Constitution.  Its real function may be, by default, oversight that creates an additional check on our government. 

Article I of the Constitution gives Congress extensive power to adopt legislation.  It deals with most issues but fall short on one issue.  It cannot effectively oversee itself.  The Constitution, by default gives that oversight to the States.  Since Congress also has the ultimate power over the Supreme Court and the Executive branch of government, general oversight of government also defaults to the States. 

The Articles of confederation were more about maintaining the status quo that creating a new government.  But they did not create a national leader or a standing army.  At the time of the Constitutional convention, our leaders knew major changes were needed to the structure of our government.  Major changes were made, changes not well outlined in the Articles of Confederation, and for this reason, it could be said that it was a ‘runaway convention’.  

For over 230 years our government operated with the help and oversight of the better angels of our human nature.  Current hyper-polarization tests the effectiveness of the oversight of those better angels. 

Over time, Congress has strayed from the principle of ‘consent of the governed’.  And Article I is the most powerful article.  If it is true that only a handful of actors are controlling the agenda of the Senate, then this is leads us in the direction of a less democratic nation.  The lowering on the democracy index is new.  That has not happened before.  This justifies new oversight to fully embody ‘consent of the governed’.    Opening an Article V convention is that opportunity.  And government oversight is its true function. 

We have a Flawed Democracy

According the Democracy Index we are no longer a Full Democracy.  Flawed Democracy is one of four regime categories.  Out of 167 countries ranked in the index we are 25th best.  Norway is at the top of the list and North Korea is at the bottom.  The categories are Full Democracy, Flawed Democracy, Hybrid regimes and Authoritarian regimes. 

The index is compiled by the Economist Intelligence Unit (the research and analysis division of Economist Group providing forecasting and advisory services through research and analysis, such as monthly country reports, five-year country economic forecasts, country risk service reports, and industry reports.) The report is widely cited in the international press as well as in peer reviewed academic journals.

A Flawed Democracy is defined as (according to Wikipedia) is a governing system in which although elections take place, citizens are cut off from knowledge about the activities of those who exercise real power because of the lack of civil liberties; thus it is not an “open society”. There are many countries “that are categorized as neither ‘free’ nor ‘not free’, but as ‘probably free’, falling somewhere between democratic and nondemocratic regimes”. This may be because a constitution limiting government power exists, but those in power ignore its liberties, or because an adequate legal constitutional framework of liberties does not exist. 

Many fear that we continue to decline on the Democracy Index.  The next regime category below Flawed Democracy is labeled as Hybrid Regimes.  It is noteworthy to observe the definition of this type of government, note its flaws, and ask if we are headed in that direction.  Hybrid regimes are nations with regular electoral frauds, preventing them from being fair and free democracies. These nations commonly have governments that apply pressure on political opposition, non-independent judiciaries, widespread corruption, harassment and pressure placed on the media, anemic rule of law, and more pronounced faults than flawed democracies in the realms of underdeveloped political culture, low levels of participation in politics, and issues in the functioning of governance.

As we look around us in 2020, it is fair to ask if we are continuing a slide toward a Hybrid regime.  Our Constitution provides an opportunity for appropriate checks and balances that can move us back to a Full Democracy.  Part of that opportunity lies in Article V.  Article V has been on moth balls for a half century.  It may be time to set aside hyper-polarization and look past the media’s obsession with the latest bright shiny object. 

Our future as a country is likely to depend on thoughtful non-partisan action by forward-looking concerned individuals.

Oversight Over All Three Branches of Federal Government

We have it.  We just don’t use it.  The overriding problem is that most of us don’t know that we have it.  Our Founding Fathers gave us the oversight opportunity.  If we don’t like what we see, we should take steps to make appropriate changes. 

It’s a binary choice, yes or no, black or white.  We can on one hand have the status quo where we run the risk of an increasingly biased Supreme Court, ever increasing polarization of Congress, and a President with ever increasing power. 

Our Declaration of Independence railed against biased judges.  In President Washington’s farewell address, he warns of potential despotism of our President and states that political parties must be restrained.  Noting recent evolution of our government branches, status quo is dangerous.

On the other hand we can use the consent of the governed to institute appropriate oversight.  But first we must overcome the negativism of the conservatives who fear that the liberals will take over and overcome the negativism of the liberals who fear that the conservatives will take over.  Our actions must be non-partisan.   

The Founders dealt with a smaller government in a different era of history.  They did not give us a detailed road map.  But they gave us the power to follow the will of the people. 

Bias in the Supreme Court is related to the Congressional confirmation process.  Increased power of the Presidency is related to the reluctance of a highly partisan Congress to restrain the power of the President.  And restraint of the Legislative Branch of our federal government cannot be expected.  We cannot expect the fox to effectively guard the henhouse.  Yet Article I and the first part of Article V of the Constitution give all oversight power to Congress. 

Effective oversight of our branches of government can only come from the second part of Article V of the Constitution.  The only other option, undesirable at best, is overthrow of our government.

On its face, the second part of Article V deals with every aspect of government.  But Congress is designed for, and has functioned well as a legislative body that deals with all legislative matters non involving oversight of the three branches of government.  For most of our history, the better angels of the human nature of those in Congress have provided adequate oversight.  Thus the second part of Article V has been relegated to the archives of the Founding Fathers library. 

Paltry efforts to utilize the second part of Article V for oversight have been unorganized and burdened with partisan labeling.  The bar is high for opening an Article V convention and single-issue frontal assaults have always fallen short.  Leadership in these oversight efforts has been scarce to non-existent.  Whether or not we have increased violence in the streets, we should be aware of the opportunity, and perhaps obligation, for appropriate government oversight. 

The burden falls upon every member of every State legislature. 

Convention of States; a Carefully Orchestrated Poison Pill

Convention of States (COS) is a well-organized group that promotes government reform through an Article V convention.  15 states have voted to approve the COS agenda and apply for an A-5 convention.  Large scale promotion of their interests has taken place over the last several years.  COS is the most well organized group whose stated aim is government reform by use of an A-5 convention. 

It’s a sham.

Efforts at government reform are nothing new.  Many government reform ideas have started as applications to an A-5 convention.  Those that gain traction have found their way into Congress (the other option to an A-5 convention) and some have resulted in amendments to the Constitution. 

But that’s not where the COS bandwagon is going.

COS proposals are not made to amend the Constitution or call an A-5 convention.  Their intention is to drive the wagon past you every day to see if you want to hop on and go in their direction.  The intent is indoctrination.  The bandwagon promotes an ideology to those who may not otherwise form their own independent political views. 

Logically, one would not be able to amend the Constitution for the benefit of one faction at the expense of another faction.  Three-quarters of the states need to ratify the amendment.  It’s not likely that one highly partisan faction would ever control that many states.  The fact that the COS proposals are non-specific makes it even less likely that 38 state legislatures would agree. 

COS’s promotion of the A-5 convention is a sham because a true A-5 convention would open the door to constitutional amendments that would benefit centrist political factions, often in opposition to COS ideology. COS does not want to go in that direction.  Falling just short of the required number of states allows them to continue their well-orchestrated promotions year after year.  If you just want to go for a ride, hop on the wagon. 

The agenda at an A-5 convention has no legal restraints. COS is large and well-funded.  So long as COS ideology remains married to one faction, those opposed fear a COS takeover of the convention.   That’s the poison pill. The real objective of COS is to poison the prospects of an A-5 convention while using this platform to continuously promote their factional agenda.  For those who fund COS, success may be measured by preventing government reform, not by achieving it. 

Many hop on the wagon, sample the concept of an A-5 convention, only to find that it’s going nowhere.

That’s not what our Founders intended.  Historically, it’s been a very long time since the last constitutional amendment.  But for those who fund COS, that lack of action is success. 

Those who fund COS also fund Hillsdale College’s Constitution 101 course.  Once again this is a bandwagon for those who want to belong and don’t excel in independent thinking.  This is all legal but may deceive the general public.  COS is not promoting the concept of amending the Constitution and Constitution 101 is not promoting education. 

True useful reforms don’t come from a radical factional perspective.  Reform happens when thoughtful leaders seek to correct a problem in a way that helps the substantial majority without wrongful harm to the minority. 

The Antidote to Special Interests

A-60 will reduce the influence of special interests.  In order to control the United States Congress at this time, special interests need only control a few powerful congressmen.  That has effectively blocked votes on those issues that favor the special interests while opposing the will of the people.  But with R-60 in place it the special interests would need to have influential control over 46 of the 50 state legislatures in order to block a vote on an issue.  And without that control, the vote will take place, the will of the people will be voiced, and the new law may be passed.  This is in spite of the wishes of those same powerful congressmen who may have aligned with the special interests.