Opposition to HJR 7 or SJR 5 (Calling for an Article V convention) Dave Black, Willoughby Ohio 11/9/13 Attached are letters from the following distinguished professionals against a convention: Supreme Court Chief Justice Burger Rex Lee, President of BYU Supreme Court Nominee Bork Associate Justice of the Supreme Court Arthur Goldbeg University Professor, Professor of Constitutional Law, Harvard Law School, L Tribe University of Texas, Law Professor C. Wright. I. HJR 7/SJR 5 is very risky for the following reasons: 1. Although it appears to ask for a limited convention regarding balancing the budget, it combines with other applications to get to the 2/3 needed. Have you looked at the other applications, because if they vary in their requests in the slightest degree or call for different amendments within their application, it would open it up to an unlimited convention. Congress could use their discretion to say the 2/3 have been met even though the requests may differ. The letters attached support this risk. 2. The safeguard of ¾ ratification is unsound as the original articles of confederation required ratification by all 13 states, and yet the convention charged that ratification by 9 was acceptable. Also, article V offers the Congress the option of ratifying through state legislatures or state conventions. They can use the mode that would most accomplish what they want. 3. HJR 7 does not mention the process of picking delegates. As I show the Compact for America proposes to have the Governor of each state pick the sole delegate for that state. There are numerous examples around the Country where a Governor goes against even their own party in favor of centralized power. 4. HJR 7 asks for a balanced budget amendment with no specifics on how large the federal budget may be. If this passes with no alteration. The federal government would have the power to raise taxes 40% to reach the amount needed to balance the budget based on the current expenditures. This would virtually eliminate the states as there would be no money left for state budgets. 5. Article V states Congress shall call convention, and Congress shall propose mod of ratification. This opens up a lot of authority over the Convention by Congress. II. The Bill of Rights are at Risk.
The last 10 years we ve seen a consistent attack on virtually all of the 10 amendments of the bill of rights. The first amendment: Freedom of Religion, of the press, Second Amendment: the right to bear arms, Fourth Amendment: the right to privacy without unwarranted search and seizure, Fifth Amendment, no one to be deprived of life or liberty without due process. Sixth Amendment: right to trial by jury. Seventh Amendment: Right to jury trial in common law. Eighth Amendment: No cruel or unusual punishment. Tenth Amendment: States authority of things not delegated to the Federal Government. III. Our only precedent was the original convention of 1787. Three major violations occurred then: 1. The convention was called only to amend the articles of confederation. It was not called to change the constitution. With the sole and express purpose of revising the Articles of Confederation. Federalist 40: James Madison. Articles of Confederation: 2. The articles required full ratification by all 13 states. The convention changed the rules to ratification by only 9 states. Article XIII: Every State shall abide by the determinations of the United States, in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a congress of the united states, and be afterwards con-firmed by the legislatures of every state. 3. The constitution changed the structure from a confederation of States to a Consolidated Government. In doing so risked the Bill of Rights totally insecure that were in such states as Virginia. Articles of CONFEDERATION and PERPETUAL UNION between the states of New Hampshire, Massachusetts Bay, Rhode Island and providence plantations, Connecticut New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia.
US Constitution: We the People of the United States, in Order to form a more perfect Union Patrick Henry: THURSDAY, June 5, 1788. The fate of this question and of America may depend on this. Have they said, We, the states? Have they made a proposal of a compact between states? If they had, this would be a confederation. It is otherwise most clearly a consolidated government. Patrick Henry: THURSDAY, June 5, 1788. The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change, so loudly talked of by some, and inconsiderately by others. Is this tame relinquishment of rights worthy of freemen? Is it worthy of that manly fortitude that ought to characterize republicans? You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your government. IV: Our only precedent before inclusion of the bill of rights risked our very freedom: The original convention showed that those seeking to consolidate power at the expense of personal liberty were able to maneuver into position to pull it off. Federal Farmer, October 8th, 1787 (Richard Henry Lee, signer of Declaration of Independence, and President under the Articles of Confederation.) when by the evils, on the one hand, and by the secret instigations of artful men, on the other, the minds of men were become sufficiently uneasy, a bold step was taken, which is usually followed by a revolution, or a civil war. A general convention for mere commercial purposes was moved for the authors of this measure saw that the people's attention was turned solely to the amendment of the federal system; and that, had the idea of a total change been started, probably no state would have appointed members to the convention. The idea of destroying, ultimately, the state government, and forming one consolidated system, could not have been admitted a convention, therefore, merely for vesting in congress power to regulate trade was proposed.
a few men from the middle states met at Annapolis, and hastily proposed a convention to be held in May, 1787, for the purpose, generally, of amending the confederation still not a word was said about destroying the old constitution, and making a new one The states still unsuspecting, and not aware that they were passing the Rubicon, appointed members to the new convention, for the sole and express purpose of revising and amending the confederation and, probably, not one man in ten thousand in the United States, till within these ten or twelve days, had an idea that the old ship was to be destroyed, and he put to the alternative of embarking in the new ship presented, or of being left in danger of sinking Virginia made a very respectable appointment, and placed at the head of it the first man in America: In this appointment there was a mixture of political characters; but Pennsylvania appointed principally those men who are esteemed aristocratical. Here the favourite moment for changing the government was evidently discerned by a few men, who seized it with address The Address and Reasons of Dissent of the Minority of the Convention of PennsylvaniaTo Their Constituents Pennsylvania Packet and Daily Advertiser 18 December 1787 With this view a convention was first proposed by Virginia, and finally recommended by Congress for the different states to appoint deputies to meet in convention, "for the purposes of revising and amending the present articles of confederation, so as to make them adequate to the exigencies of the union." The Continental convention met in the city of Philadelphia at the time appointed. It was composed of some men of excellent characters; of others who were more remarkable for their ambition and cunning, than their patriotism; and of some who had been opponents to the independence of the United States. The delegates from Pennsylvania were, six of them, uniform and decided opponents to the constitution of this commonwealth. The convention sat upwards of four months. The doors were kept shut, and the members brought under the most solemn engagements of secrecy. Some of those who opposed their going so far beyond their powers, retired, hopeless, from the convention, others had the firmness to refuse signing the plan altogether; and many who did sign it, did it not as a system they wholly approved, but as the best that could
be then obtained, and notwithstanding the time spent on this subject, it is agreed on all hands to be a work of haste and accommodation. Whilst the gilded chains were forging in the secret conclave, the meaner instruments of despotism without, were busily employed in alarming the fears of the people with dangers which did not exist, and exciting their hopes of greater advantages from the expected plan than even the best government on earth could produce. The proposed plan had not many hours issued forth from the womb of suspicious secrecy, until such as were prepared for the purpose, were carrying about petitions for people to sign, signifying their approbation of the system, and requesting the legislature to call a convention. While every measure was taken to intimidate the people against opposing it, the public papers teemed with the most violent threats against those who should dare to think for themselves, and tar and feathers were liberally promised to all those who would not immediately join in supporting the proposed government be it what it would. The continental convention in direct violation of the 13th article of confederation, have declared "that the ratification of nine states shall be sufficient for the establishment of this constitution, between the states so ratifying the same." Patrick Henry: MONDAY, June 9, 1788 A number of characters, of the greatest eminence in this country, object to this government for its consolidating tendency. This is not imaginary. It is a formidable reality. If consolidation proves to be as mischievous to this country as it has been to other countries, what will the poor inhabitants of this country do? This government will operate like an ambuscade. It will destroy the state governments, and swallow the liberties of the people, without giving previous notice. Sept 7, 10 or 15 at convention: Colonel Mason and Mr. Randolph of Virginia delegation at the convention refused to sign the constitution. This delegation is the same group the introduced the Virginia Plan, which presented the platform to expand the federal powers under the Articles of Confederation. (Anti Federalist Papers, Ralph Ketcham, 1986) Colonel Mason concluded it would end either in monarchy or a tyrannical aristocracy, which he was in doubt, but one or the other, he was sure. This Constitution had been formed without the knowledge or idea of the people. A second convention will know more of the sense of the people and be able to provide a system more consonant to it. It was improper to say to the people take this or nothing. (Papers of George Mason, III, Rutland)
V. Additional information to consider: Beware of Article V video, Presented by Mark Stubbs, https://www.youtube.com/watch?v=lz2rcxhzhdc Former member of Idaho Legislature includes warnings from: Associate Justice of Supreme Court: Arthur Goldberg. Attached is report by him on dangers of a constitutional convention. Chief Justice Warren Berger. Rex E. Lee, President of Brigham Young University. COMPACT FOR AMERICA: ARTICLE V RESOLUTION APPLYING FOR CONVENTION Section 1. Be it resolved, as provided for in Article V of the Constitution of the United States, the Legislature of each Member State herewith applies to Congress for a convention for proposing amendments. Section 2. To the furthest extent permitted by law, the Convention shall be entirely focused upon and exclusively limited to the subject matter of introducing, debating, voting upon, and rejecting or proposing for ratification the Balanced Budget Amendment. ARTICLE VI DELEGATE APPOINTMENT, LIMITATIONS AND INSTRUCTIONS Section 1. Number of Delegates. Each Member State shall be entitled to one delegate as its sole and exclusive representative at the Convention as set forth in this Article. Section 2. Identity of Delegates. Each Member State s chief executive officer, who is serving on the enactment date of this Compact, is appointed in an individual capacity to
represent his or her respective State at the Convention as its sole and exclusive delegate. :. Laurence H. Tribe University Professor and Professor of Constitutional Law Harvard Law School Conference on constitutional convention: 9/24/2011 Harvard Law School. http://www.youtube.com/watch?v=zbj7nof3hru Paraphrased: There remain too many questions such as: Can a state limit the convention to one amendment? May Congress prescribe the rules of the convention? Are states to be equally represented by one vote per state? Can delegates be bound to instruction from State legislation on the actions of the delegates. I feel there are too many unknowns on how an Article V will be handled to put the whole constitution up for grabs." Possible bad amendments: All laws shall be subject to National Security as determined by the Executive Branch. Department of Education shall be under the jurisdiction of the Federal Government. The US shall have authority over settling the debt of any state. Nationalized Healthcare shall be a right of all citizens.