Sedition

Sedition is encouraging one’s fellow citizens to rebel against their state.  It is a crime for two or more people within the jurisdiction of the United States to conspire to overthrow or destroy by force the government of the United States.  The word seditious means disposed to arouse or take part in sedition.

Our system of government is a democratic republic or representative democracy.  It is commonly called a democracy.  Democracies are best known for free and fair elections and peaceful transfer of power.  Precedent, tradition, and legitimacy have helped to create these democratic norms.

On the heels of his humiliating defeat in the previous year’s election, John Adams set an important precedent. His departure from office marked the first peaceful transfer of power between political opponents in the United States, now viewed as a hallmark of the nation’s democracy. Since then, and until now, the loser of every presidential election in U.S. history has willingly and peacefully surrendered power to the winner, despite whatever personal animosity or political divisions might have existed.  

Free and fair elections are measured by laws that are established prior to the election and then implemented in the election process.  States are in charge of the election laws that are used to elect our President.  In 2000 in the state of Florida, the Florida Secretary of State stopped the recount process and certified the narrow victory for George W. Bush.  The national perspective on laws used to elect the President was that the certification of the vote by the Secretary of State of Florida was legal and appropriate.  The United States Supreme Court in Gore v Bush supported that conclusion in a unanimous decision. 

The election laws had been followed and the 2000 election was over. Gore conceded.  Legitimacy of the election was accepted on a national and international basis.  Precedent and tradition had been followed.  Overall strength and legitimacy of our system of government was as strong as ever. 

Freedom of speech is guaranteed by the First Amendment.  We have the right to question all aspects of our government including the election process.  But it is important to the legitimacy of our government that we follow and support existing laws.  The 2020 election was somewhat different because the pandemic affected our method of voting.  But that did not occur overnight.  Adequate time was available for election law modification prior to the election.  And indeed many modifications were litigated prior to the election.  There was no overriding legitimate reason to delay the election.  Election legitimacy is based on voting in accordance to existing laws and accurate vote counting. 

Claims of election fraud prior to the election have no basis.  Our court system is the place to challenge election procedures.  If a candidate cannot win these challenges in court, then the laws dictate that the election is expected to follow the pattern of free and fair. 

Historians will agree that the 2020 election was held in accordance with laws that existed at that time.  And legal experts will agree that the votes were counted accurately; the 60 court challenges did not change the result.  All 50 states certified their election results.  All laws were explicitly followed; legally the election was over.  If a Super Bowl referee makes a critical call, and the reply officials do not reverse the call, the winner of the game may be decided by that call.  And when the fourth quarter ends and one team is ahead, the game is over, the rules do not allow further challenges.  That contest is based on rules and our Presidential election is based on rules. 

Many of us may not like the results of the contest, but we typically do not join with others or solicit an organized effort to engage in efforts to contest the result.  Venting our personal frustrations is normal and is not unlawful.  Sedition requires two or more people. 

Free and fair elections and peaceful transfer of power are cornerstones of what we call democracy.  If the free and fair election process is substantially damaged, it may not be possible to maintain our current form of government.  It follows that those who organize in an attempt to upend our free and fair election system are guilty of sedition. 

Sedition is far more dangerous when it is perpetrated by the President of the United States.   And all those who follow the seditious leader are equally guilty.  The concept of ‘I was just following his lead’ may not be a legal defense for the crime of sedition.  This is especially true for elected officials because they have a relatively perfect knowledge of the law. 

Freedom of speech is guaranteed and elected representatives have a specific right to make comments and investigate prospective wrongdoing.  But when the intent of their actions is seditious, freedom of speech is overridden by sedition laws.  An organized effort to overturn a free and fair election is seditious.  Those belonging to specific political party or a specific faction cannot use this as an excuse for an attempt to undermine our government.  Fans should not organize to ban professional football because their team lost the Super Bowl. 

Congressmen represent about 700,000 people.  They are elected to speak for those people.  If their speech undermines our government, that’s sedition on steroids.  Elected representatives swear an oath to protect and defend our Constitution.  That requires them to be extra cautious when taking actions that could potentially undermine our system of government.  They should, in accordance to their oath, avoid taking actions and or voting for measures that might be interpreted as seditious. 

All actions to challenge the results of a presidential election after 50 states have certified their election results are antithetical to the election process. Those actions lack precedent and go against tradition.  Any hint that the election was illegitimate, after all of the laws were followed when holding the election, smells of sour grapes or a precursor to sedition.  The more actions and votes taken to support those challenges, the higher the level of seditiousness.   Inevitably, a rising level of seditious actions leads to an overt attempt to overthrow the government. 

Many Americans did not expect that votes by our elected representatives would lead to the violent action of January 6th 2021.  And these Americans supported these election challenging votes by their elected representatives.  It is not clear how many Americans wanted to overturn the election, and therefore overthrow the government, just because their candidate did not win. 

In retrospect, it’s easy to see the effect of those votes.  If the President, of his own accord, chooses to continue attempts to overturn election results, that’s personal action and does not meet the definition of sedition.  The law gives him the right to be a sore loser.  But he has no authority to command or persuade others to take actions against our government. 

Each elected official has free will and a duty to protect and defend our Constitution.  Those members of Congress that chose to challenge the election results are individually accountable for their pre-seditious actions.  And their continuous rhetoric supporting that position only reinforces that accountability.  Failure to acknowledge the winner of the Presidential election, after the votes had been counted and certified may be, in retrospect, a seditious act.  During the Nixon era there was a slogan ‘America, love it or leave it’.  That applies today.  Members of Congress can’t have it both ways.  They cannot claim to protect and defend the Constitution and love America and at the same time cast votes that undermine our form of government.  If they don’t like our election system (finalized when 50 states certify their vote totals) perhaps they can leave Congress or leave the country and go to a country where they find the laws more suitable.

The rhetoric and actions taken by members of Congress has directly or indirectly lead to a violent attempt to take over the halls of Congress.   The word seditious means disposed to arouse or take part in sedition.   A degree of guilt certainly falls on some of our elected representatives.  If they suffer no negative consequences, then they, and all future elected representatives, will be emboldened to take similar actions in the future. 

If the President has personally done wrong, then laws will be enforced and the President will suffer negative consequences.  It is also time to consider potential illegal actions by other elected officials and penalize those who are guilty. 

Federalism is part of our system of government.  Indirectly, with the votes of the people, states elect the President.  Those state officials, 18 attorneys general, who participated in the election challenge, after all 50 states certified the election results, may also have a degree of guilt.  Their efforts had major racial overtones.  Perhaps they would overturn the winner of the Super Bowl because one team had too many black players or too many white players. 

Our system of government, has in the past, and will in the future, endure many challenges.  Ultimately, our success as a government will depend on how we respond to sedition and all other challenges.  We should encourage our elected officials to take a long-term perspective and let their better angels guide their actions. 

Redefine Presidential Powers

Our Founding Fathers could not anticipate the evolution of presidential power.  And it’s not uncommon for a president to be driven by a lust for power and influence.  The Constitution does not spell out every possible circumstance, so it may be necessary to add clarity.

We all anticipate that the President is not above the law.  But the Justice Department is allowed to make interpretations of the law based on the special circumstances surrounding the leader of the executive branch of government.  But the good intentions designed for one set of circumstances may not be appropriate for all presidents. 

There’s nothing in the Constitution that states that a sitting President cannot be indicted.  On its face the rule appears to protect the President from lawsuits that could detract from his duties to protect and defend the Constitution.    But that ruling has two flaws.  If a president is investigated and not indicted, it gives the false impression that the president is not guilty regardless of the conclusions stated as a result of the investigation.  Secondly, the President may break the law as many times as he or she sees fit and avoids prosecution during the presidential term(s).  The President is effectively a king (during his or her term of office) subject only to impeachment and removal.  Impeachment and removal has recently become so political that Senate members of the same party rarely ever vote to remove.  Only crimes that are horrendous result in any negative consequences for a president during the term of office. 

Alternatively, if a president can be indicted, the risk of political witch hunts is high.  But that risk may be more manageable than the alternative of a lawless president.  Although the head of the Justice Department is independent, he or she serves at the pleasure of the President.  That substantially reduces the chances of a purely political indictment. 

Discretion, on the part of the Justice Department can be influenced by historical precedents.  Indiscretions on the part of the President are measured by the term ‘high crimes and misdemeanors’. The Justice Department may ask; could the alleged indiscretion be considered impeachable offense?    They may also ask; if we prosecute the President for this minor offense, will this black mark on the President be too damaging to the country.  Or is it best that the charge be delayed till after the presidential term or written off as a political ploy.  Discretion may certainly delay prosecution of alleged crimes committed prior to the President’s candidacy or term of office.  The President is not above the law but may receive a limited and defined degree of discretion.

Sentencing, subsequent to conviction, is not addressed in the Constitution.  Disruption of presidential duties because of the conviction may not be in the interest of the country.  A conviction of the President is not directly related to removal from office.  Although sentencing may be delayed until after the presidential term expires, it may be appropriate that this black mark be placed on the record.  Political power and influence is likely to be negatively influenced by a conviction.  Certainly, a president with a conviction during the first term of presidency would be less likely to be reelected. 

Pardon Power

Presidential pardon power is absolute.  It gives the President the power to right a perceived wrong.  But it also gives the President the power to give a get-out-of-jail-free card to lawbreaking friends and relatives.  That abuse of power usually has political consequences for the President and or his political party.  But a major exception occurs during the lame-duck part of the presidential term.  There are little or no political consequences for pardons issued during this time frame.  And that allows an additional abuse of power.  The President may assure a potential criminal, committing crimes for the benefit of the President, that a pardon is coming.  The lame-duck pardon skirts the law and political consequences. 

We may consider restricting the Presidents pardon power.  Eliminating all lame-duck pardon power would still leave the President with 95% of the pardon power time frame.  Our Founders did not intend that pardons would be issued for personal friends, close relatives, and business associates.  Pardon power may be eliminated from a well-defined list of those close to the President without opposing the intentions of our Founders. 

Were the Benghazi hearings seditious?

Most Americans never considered the long term consequences of congressional action for the sole purpose of pleasing their political base. 

Benghazi hearings lasted longer than any other and produced no indictments.  They easily fit the definition of a political witch hunt.  Highly political ploys send a divisive message. 

One overt action, taken on behalf of a political party rather than the people, may not be enough to qualify as sedition.  But a pattern of overt political actions, especially brazen overt political actions is sedition.  The January 6th, 2021 riot is evidence that these actions are seditious.  It is overwhelming obvious that they contributed to the problem. 

When Congress or the President takes overt political action that undermines the credibility of government, that action is seditious in nature.  Demand for another hearing that would re-investigate the results of the 2020 presidential election, after 60 court challenges failed, was a brazen political action under any common sense analysis.  And it is hard to argue with the allegation that this demand contributed to the January 6th riot and therefore was seditious. 

We must consider not only a penalty for that demand but also consider penalties for all of those acts by Congress or the President that send the type of divisive message that could contribute to subsequent violent action against our government.  

It is reasonable to conclude that the Benghazi hearings began a pattern of behavior that lead to seditious action.  Perhaps the January 6th riot gives us a better opportunity to define and call out patterns of dangerous behavior. 

It’s all about Health Care

Of the 50 top rated democratic countries on earth, each has universal health care (except for the countries with a population under three million).  The United States is the lone exception.  We are ranked 25th on the Democracy Index.  Countries that have large populations and do not have universal health care are more prone to dictatorship. 

Our health care costs are about twice as high as other countries with universal health care and our health outcomes are similar. 

The United States Supreme Court has had consistent heartburn over the constitutionality of the mechanics of universal health care.  It seems that because universal health care was not around in 1787, the mechanics of the system were not written into the Constitution and therefore can be easily called unconstitutional.  Ultimately, anything that is not specifically spelled out in the Constitution or its amendments may be subject to arbitrary decisions of the judges. 

Thomas Jefferson laid out the parameters of the problem: 

“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

When we see all the other countries with less expensive health care we must question the partisan loyalty of our Supreme Court judges. 

One political party has dominated the appointment of judges to the court.  Are we subject to the ‘despotism of oligarchy’?   The answer would not surprise Thomas Jefferson.  Moving from our present capitalistic health care system to a universal health care system would threaten the profits of the powerful pharmaceutical industry and the powerful insurance industry.  In an oligarchy, those powerful industries would be favored over the will of the people.  It seems that the political party that has dominated the appointment of judges is also in favor of ‘despotism of an oligarchy’. 

And the will of the people can be influenced by carefully orchestrated propaganda.  The oligarchs and there favored political party have had decades to contrive carefully stated phrases to support their position.  Most of their phrases have been an attempt to prevent universal health care from hurting their profits. 

‘Administrative state’ has been given a very negative connotation while each country with cheaper health care has a well-developed administrative state.  This scares the oligarchs. 

‘Tax and spend’ references the fact that universal health care involves a much larger budget.  What is not said is that this larger budget is more cost effective.

‘Reduce the size of government’.  Factually, you cannot obtain cheaper health care without a larger government footprint.

The favored phrase is that ‘socialism is bad’.  All of the other large democratic governments have a larger degree of socialism and all have lower health care costs.   We already have a socialized mail delivery system and a socialized federal highway system and many other aspects of socialism.  Every nation seeks a balance between capitalism and socialism.   In the long run, this move toward socialism means little more than a reduction in health care cost and saving 45,000 lives of those unfortunate Americans who fall through the cracks each year because they don’t have health insurance. 

We must ask; will corporate profits dictate the function of our government and our health care system?  And if biased judges are the ultimate arbiters of constitutional questions, are we moving directly to the ‘despotism of an oligarchy’?

Path to Success

The problem is the partisan divide that appears to be widening.  Individual issues are secondary.

Every peaceful solution to solving the problem points us directly to Article V.  Passing an amendment initiated by Congress is not a reasonable option in today’s contentious environment.  By default, the process must go through state legislators. 

This has never been done.  It’s a complex process. Lack of complete understanding by the legislators is challenge.   Each of the over 7,000 legislators must have a good grasp of the challenge.  And each legislator must understand how and why their actions will reduce the partisan divide. 

A balanced budget amendment may improve our financial long-term security but may not be a major factor in improving our current political climate.  Think about it. Of all the contentious comments and conversations in the most recent election cycle, what percentage involved balancing the budget?

It is not fair to expect each state legislator to independently do a full investigation of the problem.  There is no history lesson to follow and their primary concern is issues that affect the state, not the federal government.  The state legislator may be viewed as the average college student or the average businessman.  They need a clear set of guidelines and an opportunity to make an informed decision in a reasonable time frame so that they can move on to other issues. 

The quickest and easiest solution may be a bundle of constitutional amendments that is most likely to reduce the partisan divide.  What are the root problems of the arguments that we have been having and how can we make changes to put out those fires?

The lawmaker’s creed was indirectly derived from the Declaration of Independence.  I can be used as a guideline for all lawmakers.  ‘Maximize the efficiency of the economic engine that drives our economy while simultaneously maximizing the satisfaction of the constituents’.  As we examine the myriad of possible amendments we find that most would not have direct economic effect.  We are fighting over our divergent passions and political power plays.  Absent and economic impact we should make laws that increase our level of overall satisfaction.  Certainly, someone’s ox may be gored but overall satisfaction should be the goal. 

State legislators need a set of parameters and a suggested group of amendments.  This will make their task easier and efficient.  Give them a goal and a path to get there.  We have a path.

An outline of proposed constitutional amendments provided by a gathering of minds may provide grease to that path.  It’s time to get started. 

R-60 justification

Our Founders have strongly implied that regardless of the intransigency of Congress the principles of representative democracy should prevail.   When the refusal to pass laws is the result of the strong lobbying by the fossil fuel industry, the insurance lobby, big pharma, the gun lobby or other powerful lobbies, the people still have the opportunity to influence the rights and duties of citizens. 

Article V clearly gives the states the right to pass amendments to the Constitution.  But that may not be a full deterrent to the faction that causes congressional intransigency.  Many issues should not be cemented into the Constitution.  The people’s desire for fuel economy standards may change.  Campaign finance laws may cause an undesired result and law adjustments may be appropriate.  Laws regulating the internet may be out of date in a short time frame.  Amending the Constitution is a process meant for major issues and it is understood that the process takes a long time.  Less important issues still need to be legislated.  And the non-delegation doctrine clearly opposes the concept of letting the issues slide toward executive orders by the President or SCOTUS decisions that have a major effect on the rights and duties of citizens. 

We have reached the point where failure of Congress to legislate important issues has become a force opposing the will of the people.  The solution is right in the Declaration of Independence.  Paraphrasing, ‘When our form of government denies the consent of the governed, it is the right of the people to alter it’.  If Congress is failing to pass relevant laws, we must create a method to cause those relevant laws to be passed.  In order to do this, Article I needs to be modified. 

Direct democracy is not favored by many scholars because it may be too highly influenced by the passions of the people.  A national referendum initiated by the accumulation of signatures is essentially direct democracy.  But a national referendum initiated by the deliberate reasoning of elected lawmakers substantially differs from direct democracy. 

Federalism is part of our system of government.  The states already have the right to bypass Congress and pass amendments to the Constitution.  By altering Article I, states may acquire the right to initiate national referendums.  When Congress fails to pass relevant laws, a vote of the people could create those laws.  And the powerful lobbyist groups that influence Congress would have substantially less influence on the process. 

Dale Leitzke

spade@new.rr.com

A Flaw in the Constitution

Article 1 allows Congress to create laws.  These laws often set policy.  This policy may change over time and Congress has the ability to adapt and change the law and the policies that are created.  That’s fine.  But when the Congress cannot decide on policy for various reasons, the issue often ends up in the Supreme Court.  The Dred Scott case is an example.  Roe, Citizens, and Heller are also examples.  Rulings by SCOTUS effectively set policy.  The flaw is that Congress can no longer adjust that policy after SCOTUS has made the ruling.  Just by deciding the case, the policy decision has moved from the jurisdiction of Article 1 to the jurisdiction of Article 3.   The people are now stuck with the policy in perpetuity. 

Although, on paper, it is possible to seat a new court that will rule differently, or to pass an Amendment to the Constitution that would overrule the court, those options are not real in a world of partisan politics.  In effect the policy set by SCOTUS is cemented in place.  Even if the ruling has unintended consequences, we are stuck with the law and perpetual controversy for an indefinite future period.  The voters have a good reason to feel powerless because they cannot vote on the issue or elect representatives that can vote on the issue.  

This gives SCOTUS an enormous ability to set policy on controversial issues.  And those controversial issues increase political division.  The more than the court ‘legislates from the bench’ the higher the level of partisan division.  Indeed the Dred Scot case did not start the Civil War, but it did help to push the country over the edge.  If Congress had decided the issues surrounding Roe, Citizens, and Heller there would be less controversy.

Dodging controversial issues is easy for Congress but tough on America.  SCOTUS took many years to decide the Dred Scott case.  Perhaps the judges were very scared of the negative consequences of legislating a controversial issue from the bench and scared of the precedent it would set.    Is Congress setting us on the path of great upheaval by refusing to do their job? 

Dale Leitzke

spade@new.rr.com

Bypassing the Roadblock to an Article V Convention

Records of the Philadelphia Convention (1787) show that the Article V alternative was deliberately placed in the Constitution as a check to an intransigent or unresponsive Congress.

In 2016 the Congressional Research Service stated:

“Renewed interest in the Article V Convention alternative has arguably been driven by public perceptions of policy deadlock on the national level and discontent with the nation’s direction. One political analyst recently argued that the nation is in a period of unusual political volatility, reflected in part by “eleven straight years in wrong track pessimism in national polling. This is the longest period of pessimism ever measured.” In late 2014, moreover, the Pew Research Center found that 81% of respondents expected political divisions to grow deeper and to continue. Eighty-six percent of respondents believed the nation would experience continuing partisan gridlock, but only 20% believed that there would be progress on the most important national problems in the near future.  Critics might argue that, notwithstanding these conditions, the convention movement, in its present incarnation, has yet to attract widespread support among the general public or to influence action on this issue by more than a few state legislatures.” 

National polling has not changed significantly over the past four years.  That’s 15 years of dissatisfaction and a public perception of policy gridlock. 

Appropriate legislation follows a robust public debate on the issues.  That’s what’s missing.  In Congress, partisan bickering has replaced useful public debates. 

Article V allows the states to hold an Article V convention after 34 submit applications.   That has never happened in our country’s history.  Current conditions show a need, but apparently there is a roadblock.

The question becomes; is the bar too high or are we not properly prepared to clear the bar?    Since lowering the bar is not an option (that would need an amendment to the Constitution) we need additional preparation to clear the bar, even if that lengthens the approach and adds a step to the process.  And we should not look for help from the federal government.  An A-5 convention puts the states in a potentially adversarial position with Congress because the amendments could reduce the power of Congress. 

The roadblock was not envisioned by the Founders.  Conventions were more commonly accepted in the late 1800’s.  Delegates got together and discussed the issues.  The number of issues that could be discussed at the convention was not a primary concern.  This is called a general (plenary) convention.  Applications to an Article V convention were mostly for a general convention during the next 100 years.  The states held little fear that by holding an A-5 convention we would destroy our government.  

The concept of a ‘limited’ convention arose in the 20th century.  A ‘limited’ convention may be held specifically to discuss the one or more issues listed on the state’s application.   This provides a reasonable assumption that other issues would not be vetted and passed at the A-5 convention (that would be a ‘runaway’ convention).  On the surface, the concept of a ‘limited’ convention appears reasonable.  But in actual practice it creates a major roadblock. 

Instead of getting together to discuss the pressing issues of the day, the states must agree on one topic of discussion. But there is no venue where the states may gather to achieve agreement on the topic.  The prospective meeting takes place AFTER there is agreement.  It is possible for a ‘prairie fire’ topic to achieve 34 similar state applications but this does not reconcile with the current need based on 15 years of dissatisfaction with Congress. 

Some argue that any A-5 convention could pass amendments that deal with differing subjects.  But numerous legal opinions contend that Congress need not submit these prospective amendments for ratification by 38 states if the language of all 34 states in their applications does not coincide with the amendment.  If it’s a convention called by 34 applications for a general convention, then all amendments would be submitted to the states for ratification.  Gathering applications for each potential topic from all 34 states is a giant problem when each state submits applications for a ‘limited’ convention.  This is the roadblock that was not created by our Founders.

An A-5 convention may deal with many issues.  Some may involve congressional oversight.  Some may deal with Supreme Court rulings that satisfy the personal interest of Congress but not satisfy the general public.  Both Congress and the Supreme Court may be negatively affected by the proposed amendments and therefore may have a propensity to put up roadblocks. Advancing negative comments (propaganda?) about a possible ‘runaway convention’ may influence the possibility of success.   

The current approach to getting over the bar has been thwarted by the lack of a robust public debate.  The power lies with the states.  But governments tend to be reactive rather than proactive. 

Single issues are promoted by private groups.  They lobby states to present an application to an Article V convention for the purpose of passing a constitutional amendment that favors their cause.  These groups tend to lobby for a ‘limited’ convention.  The groups are often fueled by passion and partisanship.  Partisanship damages any realistic chance of getting 38 states to support that issue.  And grass roots passion can be associated with direct democracy rather than the deliberate reasoning of elected representatives.  State government reaction to pressure by these private groups may not be the best way to proceed.  It tends to bypass robust public debate on all of the issues of the day. 

And the lobbying may be ineffective because state legislators may not be up to speed on the issue or the process needed to amend the Constitution.  State legislators may also not be prone to jump onto a bandwagon because the recent historical success rate of these lobbying groups has been zero. 

It seems nearly impossible to have a ‘limited’ convention and deal with all of the important topics that cause a low congressional approval rating.  And if we try to deal with one issue at a time we risk the possibility of many conventions.  Letting private organizations take the lead may not be the best course of action. 

The Constitution describes the gathering as ‘a convention for proposing amendments’ not a limited convention for proposing one amendment.  In essence attempts at having an Article V convention have been blocked by the awkwardness of the conflict between the ‘general convention’ and a ‘limited convention’. 

The Constitution clearly gives power to hold an A-5 convention to the states.  With or without help from private organizations, the states need to take assertive action to open the doors of the convention.  The federal government cannot dictate the method(s) used to achieve the objective.  Current reactive approaches have failed. 

A robust debate over the domestic issues that face our country is a reasonable objective.  That can be achieved at a ‘general’ convention of states.  The gathering must be perceived as indispensable to the process of amending the Constitution.  States have the power.  The gathering becomes indispensable when the states say that it is indispensable. 

The Pre-Convention

This gathering may be thought of as the first half of an Article V convention.  Major debate takes place in the pre-convention and final wording of the Amendment takes place in the formal A-5 convention.  The formal A-5 convention will be ‘limited’ to the topics that are vetted and approved at the pre-convention. 

The process of passing laws has many steps including introduction of the measure into committee, consideration by the entire legislative body, and reconciliation between legislative bodies.  Each of the steps is a part of the process.  The pre-convention and formal A-5 convention are each indispensable parts of the process and may be compared to committees advancing legislation.  Sending delegate approved legislation back to the states for state approval (that approval is shown by submitting an application to the A-5 convention) is part of the legislative process. 

States governments tend to be reactive.  Success of the pre-convention and subsequent A-5 convention will be dependent on proactive action by state government. They must seize the opportunity to act in the spirit of federalism.

Initiation of actions to hold a pre-convention will come from state leaders including state legislators.  Each must fully understand the process and the parameters of the actual convention. 

The function of the state legislators will be improved.  Existing attempts by states to amend the constitution place individual legislators in an undesirable position.  They are asked to support an idea.  The request is typically made by a private, possibly partisan, group.  The legislator’s knowledge of the process is relatively limited and the legislator often has little knowledge of the difference between and the consequences of a plenary convention and a limited convention.  And the idea has not been fully vetted by public opinion.  

The new path puts the state legislator in a better position.  The legislator need not have good knowledge about the process or any individual issue.  They can easily understand that their function is to assist in the selection of delegates to a convention where the state’s best interest will be represented.  If and when an issue comes back for approval, it will have been fully vetted and a rough draft of the proposal will be available, not just a concept.  In addition, the state delegates will have reported their position on the issue.

The function of private groups will be relegated to an inferior position.  They may contact state legislators to promote calling a pre-convention and subsequently may show support for a fully vetted proposal.  This streamlines the contacts with state legislators. 

The plenary pre-convention will deal with issues that may not have been flashy enough to attract the attention of private groups.  That’s a plus for representative democracy.

A vote in favor of a proposal by state delegates at the pre-convention sends the message that it is likely that their state legislature will vote to support the measure with an application to the Article V convention. 

There is a distinct and important possibility that after the pre-conference is held and the process is completed, the states will change their views and hold the next conventions as plenary A-5 conventions. (All of the applications would be plenary.) This is an important talking point be used to convince everyone that the pre-conference is a result of the cumbersome nature of existing protocols.  We can’t change the protocols and the current distrust surrounding an A-5 convention so it is necessary to take a longer path at this time.  The landscape may or may not be different for future conventions. 

Once a quorum of states has agreed to attend the convention, the others will fear losing their vote and being left out.  A plenary convention is more likely to achieve a higher attendance.  With a limited convention some states may not show up because they oppose the single (possibly partisan) proposal.  A plenary convention allows each state to bring its own proposals to be vetted. 

Pre-A-5 would develop a rough draft or clearly stated intentions on fully vetted subject but would not develop final amendment language.  Clearly, the pre-A-5 is not a lawmaking body but fully developed intentions may streamline the A-5 application process.   

The pre-convention may set procedural and rules precedent for the first A-5 convention. 

Dale Leitzke

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.