• Convention Of States During Second Trump Administration

    May 18, 2024
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    Doral, Florida - The Convention of States movement does not have the goal of abolishing the United States Constitution. That claim is a myth with no sound basis. Instead, it does have the goal of amending the Constitution in accordance with the provisions expressly provided in Article V thereof. This movement calls not for a Constitutional Convention to rewrite the Constitution, but only for a Convention of States as provided therein.

    Towards the end of the Constitutional Convention during September 1787, George Mason, delegate from Virginia, and others observed that there was no provision for the amendment of the Constitution, except through an act of Congress itself. But what if the problem originates in Congress? Then citizens and the States cannot count on Congress to fix itself.

    Accordingly, James Madison, the master craftsman of the Constitution, agreed to add the following to Article V thereof: “The Congress, … on the application of the legislatures of two thirds of the several states [today that number is 34 States], shall call a convention for proposing amendments.” These amendments take effect when adopted by three-fourths of the States [today that number is 38 States, so that 13 States may block any amendment].

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    That is all the Constitution says. For Congress to “call” a convention means to set its time and place, not to hold the convention itself. There is no provision for Congress to control such convention or interfere with its operation. Such control and interference would contravene the intent expressed in the legislative history, which clearly sought to provide a mechanism independent of Congress for amending the Constitution.

    While the States may use nullification to oppose certain federal laws, nullification cannot create new federal fiscal restraints or term limits.

    Washington Is Broken

    Washington is broken: (1) They are taxing, spending, borrowing and printing too much money; (2) They are regulating unreasonably and over-reaching their power; and (3) They constitute a self-perpeptuating permanent class of incumbents, including not only politicians, but also bureaucrats in the administrative branch.

    It doesn’t work to send good people to Washington, because most of them quickly become part of the problem. See Speaker Johnson (R-LA), formerly a conservative Republican. As Lord Acton observed, power corrupts and absolute power corrupts absolutely. Accordingly, Washington is broken and will not fix itself. That is where a Convention of States, which would be called at the petition of 34 state legislatures pursuant to Article V of the Constitution, has a role to play.

    Amendments Under Consideration

    The amendments considered by the Convention of States movement include those set forth below. The state legislatures that petition Congress for a Convention of States should also instruct their delegates to consider only specific topics for amendments.

    (1) Fiscal responsibility amendment, imposing restraints on spending. This is not simply a balanced budget amendment, because that can lead to a requirement to raise taxes, as has happened in some states with such amendments.
    (2) Limitations on the scope of federal jurisdiction and power over interstate commerce and otherwise. See Schechter v. National Recovery Administration, United States Supreme Court (1935).
    (3) Term limits for: (A) Congressmen of five or six terms of two years each; (B) Senators of two or three terms of six years each; (C) Judges of 20-year terms, which may be renewed; and (D) except in the military services, limit to 10 years or so in total service for the administrative branch of the federal government, and for legislative aides.
    In addition, many conservatives support the following amendments:
    (4) Repeal of the 17th Amendment, so that state legislatures will once again elect Senators, thereby restoring balance in our federal system. The National Federation of Republican Assemblies has adopted a resolution supporting this proposed amendment.
    (5) Fix the number of Justices on the Supreme Court at nine, to reduce the possibility of court-packing. See: https://keepnine.org/.

    There is no other way to adopt these amendments than for 34 States to petition Congress to convene a Convention of States pursuant to Article V of the Constitution. Hopefully, this petition and the threat thereof will prompt Congress to start the amendment process on its own, but we have seen that we cannot count on them to fix themselves.

    It is useful to see the simulation last year of how a Convention of States would be conducted:

    Road To Damascus

    Your columnist joined the Convention of States movement around 10 years ago while residing in Texas. At that time your columnist was joining a cause supported by: (1) Governor Greg Abbott of the Great State of Texas, who was then Attorney General; (2) Justice Antonin Scalia, since deceased, who was my professor of contracts and administrative law at UChicago, JD’81; and (3) Mark Levin, conservative author and host on talk radio and cable news. They are knowledgeable, serious and respected lawyers, all constitutional conservatives.

    Other supporters include Senator Rand Paul, former Senators Jim DeMint, Rick Santorum and Jim Talent, former Governor Mike Huckabee, Dr. Ben Carson, Morton Blackwell of the Leadership Institute, writer Eric Metaxas, and Lawrence Reed, former President of the Foundation for Economic Education.

    As a corporate lawyer in New York, your columnist worked in Venezuela privatizing its national telephone company in 1991 and more, until they elected Hugo Chavez and he took office at the beginning of 1999. Thereafter he consolidated totalitarian communist power, in part by packing the Venezuelan Supreme Court and completely rewriting the Venezuelan Constitution. Accordingly, I have empirical hands-on experience with the threat to liberty represented by completely rewriting the United States Constitution or expanding the number of Justices on the United States Supreme Court. Your columnist does not go along with allowing that to happen in America.

    Runaway Conventions

    A common argument against a Convention of States is that there would be a “runaway convention,” which would exceed the scope of its mandate from state legislatures, and proceed to rewrite and completely amend the United States Constitution. This would be very unlikely to happen, because the approval of 38 state legislatures is needed for any amendment, so that any 13 state legislatures could block it.

    Ironically, we currently have four other “runaway conventions” in session that opponents of a Convention of States ignore:

    (1) A Congress who ignores the Constitution, shirks its legislative responsibilities, and delegates the power to legislate and make rules to the administrative branch. They do this in order to avoid accountability in elections or any other circumstances thereafter. Then they can focus their attention on what their consider their main task, which is raising money for re-election, and also making a few insider trades to bolster their retirement accounts.
    (2) A President with a phone and a pen, who ignores the Constitution. President Obama was the most open about this practice, but he was not the only one to use it. President Biden has repeatedly defied the Supreme Court by using taxpayers’ money to pay student loans. The Imperial Presidency is bipartisan and rarely contained.
    (3) A Supreme Court who ignores the written text and legislative history, and instead enforces a “living Constitution,” as urged by President Wilson and other progressives. Judges are legislating from the bench, making up such legal fictions as a “right to privacy” and a “right to dignity.” The Constitution contains some 4,500 words, but many judges go beyond that, and instead think that the real Constitution is set forth in the Supreme Court Reporter and the Federal Register. As Martin Luther urged, we must return to the source.
    (4) The administrative branch, which is found nowhere in the Constitution, yet manages to run the federal government, with Congress delegating rule-making power, and federal courts deferring to its so-called superior expertise in regulatory matters. This branch works together with progressive Presidents, as is the case with this Obama-Biden 3.0 administration, but works to thwart the will of the people in cases of a conservative President, as happened during the first Trump administration.

    The administrative branch not only has no Constitutional basis for its power on its own, other than unconstitutional delegation of power by the other branches, but also exercises its power in an unconstitutional manner. It does this by ignoring the doctrine of separation of powers, when it combines the legislative or rule-making power, the executive or prosecutorial power, and the judicial power, by trying cases that it brings with its own prosecutors, for violations of its own rules, and in front of its own administrative law judges.

    These are the four “runaway conventions” currently in session that we need to rein in. Reining them in requires a Convention of States. Here is an exposition of the foregoing principles.

    Fix Washington With The Citizens That We Have

    Your columnist agrees with a Miami libertarian colleague, owner of a repair shop for high-end cars, who has observed that we lack sufficient civic virtue to undertake these proposed amendments to the Constitution. Nevertheless, as Secretary Rumsfeld observed during Iraq War 2.0, we go to war with the army that we have.

    We have to fix Washington with the citizens that we have. The Constitution itself provides for its own amendment through a Convention of States. To avoid using this mechanism, simply due to fear of our own corruption and civic depravity, goes against the spirit of the Constitution. In fact, the unconstitutional position is to ignore the mechanism provided to us by the Constitution itself. Prayers are certainly called for in this work. As medieval clerics said: Ora et Labora = Pray and Work.

    In addition, the process is part of the solution. The general objective of this movement is to mobilize citizens for self-government. Freedom is not free. It requires that We the People remain permanently involved in our government.

    Finally, it is wiser to hold this Convention of States during a strong conservative Republican administration, like the second term for President Trump, and hopefully also with conservative Republican control of both houses of Congress.

    Don’t Tread On Me!



    Eduardo Vidal

    Eduardo Vidal is a lawyer and political activist. His family brought him when he was nine years old from Cuba to the USA, but now the rule of law has been eroded in the USA as well, and we are turning into Cuba and the rest of Latin America.

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