May 23, 2017
By Lewis Shupe, Contributor FFOA News Network
Article V & the Convention of States
Article V of the United States Constitution reads as follows:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
As far as we can determine there are two ways to amend the Constitution:
Way 1 – Two thirds of both houses of Congress must agree to an amendment and then three fourths of the state legislatures must approve the amendment.
Way 2 – Two thirds of the state legislatures may call for a Constitutional Convention (Convention of States) to propose amendments, which then must be ratified by three fourths of the state legislatures.
There are five problems with this Article, three minor and two major. Let us deal with the minor ones first:
Minor problem 1: Way 2 may well never happen. By the time everyone quits arguing about the specifics of a Constitutional Convention it will be a long time before it can proceed. We had a Constitutional Convention initially because we needed a Constitution but we have never had one since and likely never will.
Minor Problem 2: How state legislatures approve amendments is not subject to judicial review. Probably, in most cases, there is nothing wrong here. If a state has a say three quarter requirement to approve this is probably excessive. The Article needed to be more specific in this regard.
Minor Problem 3: The Article does not confer any emergency powers so that an amendment may be adopted until acted upon by the states. This action could be necessary under certain conditions.
Major Problem 1: The 3/4 rule is too stringent.
Major Problem 2: The Article, as written, gives the states the power to stall. Like college basketball, the states need a shot clock. Often the Congress, in proposing an Amendment, gives the states a time limit. The Congress has no constitutional authority to do this and the states are free to ignore the time limit, which they often do. The Founding Fathers did not include a time limit because people in that time were generally honorable and when presented with a question would act upon it. The framers of the Constitution did not foresee all the weasels that are presently elected to state and national offices that are afraid to stand up and be counted on an issue because they may offend some group of voters.
Why is this so important? Presently it is almost impossible to amend the Constitution. This gives the government another excuse for ignoring it. We see what has happened over the last 85 years when Congress and the President ignore the Constitution and the courts allow this to take place – a legal impetus to the rise of socialism.
The Convention of States is an effort by a group of concerned citizens to call for a Constitutional Convention to amend the Constitution. While the U.S. Freedom Army supports and applauds their efforts we feel that the task is quite daunting and the required 34 states needed to call for such a convention will be extremely difficult to attain. Having said all of that we hope they succeed.
If they do succeed they should concentrate on Article V only and not make any other constitutional changes. Without going into a lot of detail the items we noted above should be addressed and the 3/4 requirement should be changed to 2/3. It should be constructed so that 2/3 of the state legislatures can amend the Constitution unilaterally. Without going into a lot of detail about the nuts and bolts of how this should be done, this is necessary as a check on the overreach of the federal government.
This new Amendment would look something like this:
Section 1. Article V. of the Constitution of the United States of America is repealed.
Section 2. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution. The Legislatures of two thirds of the several states must ratify those Amendments for them to become law.
Section 3. Any State may propose an Amendment to the U.S. Constitution when approved by 2/3 of its legislators. These Amendments shall be valid as Part of this Constitution, when ratified by the Legislatures of two thirds of the several states. Individual states will have one year to ratify or refuse to ratify Amendments as proposed to them. Failure to act one year from the date of submission will mean that the state has approved the Amendment.
Section 4. Any Amendment may be enacted immediately and be in force until the ratification process is complete if the President of the United States and at least seven members of the United States Supreme Court agree to the Amendment as proposed. No Amendment under this section may nullify the powers of the states listed in this Amendment.
Section 5. The Legislatures of the individual states must only be in the majority to ratify Amendments. Other than this requirement, individual states may select any other reasonable processes for ratification.