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Response by Bill Walker to Goldwater Institute Report...
by FOAVC Administrator - Thursday, 19 January 2012, 09:40 PM
This email is being sent you because at some time you expressed interest in an Article V Convention. If you have received this email by mistake, please read no further and delete this email. It will not be resent to you.

For many years there has been a debate regarding Congress calling an Article V Convention. Article V of the United States Constitution mandates Congress must call a convention for the explicit and express purpose of that convention proposing amendments to the Constitution. The convention must be called, according to the terms of Article V, when two thirds of the state legislatures formally apply (or request) that Congress call a convention. The Constitution establishes no other term or condition for a convention call other than two thirds of the state legislatures must apply for a convention call by Congress.

Thus, other than requesting the convention call, the content of a state application, has no bearing on whether Congress must call a convention. The Constitution is explicit: when two thirds of the states apply for a convention call, Congress must call. According to nearly all historical and academic studies, the call is peremptory. Peremptory is a legal term meaning Congress is given no option as to refusing to call a convention. Under the expressed terms of Article V, a convention is not a constitutional convention, that is, it cannot propose or write a new Constitution.

Despite the fact 49 states have submitted over 700 applications (an average of one application every four months by at least one state since our nation's founding) Congress has refused to call the convention as required by the Constitution. Indeed, Congress has been so remiss in its required constitutional duty that it has never even gathered the state applications into a single public record thus allowing public inspection and, of course, forcing Congress to know when the states have applied in sufficient number to cause a convention call. Friends of the Article V Convention (FOAVC) has remedied the congressional omission by compiling the applications through use of photographic copies of official government records and listing them in a single public source. This public record irrefutably proves Congress is currently obligated to call a convention and violates the Constitution for refusing to do so.

Many individuals, state legislatures and public interest groups have, within the last few years, expressed interest in causing Congress to call an Article V Convention. They have suggested a variety of amendment proposals for a convention to consider. Many of these proposals are duplicates of applications already on file with Congress such as balanced budget amendment, state nullification of federal laws, repeal of federal income tax, limitation on national debt and so forth.

To further illustrate how effective Congress is at avoiding its constitutional responsibility, consider that this public record proves at least three amendments subjects, apportionment, repeal of federal income tax and a balanced budget amendment each have received enough applications from the states to cause a convention call on each of those issues. The omission by Congress has thus far been so effective that political leaders of today continue to call for new applications (i.e. balanced budget amendment) despite the fact there is already a sufficient number of applications to cause the convention call for the amendment issue they say they want to achieve!
Groups such as the John Birch Society and Eagle Forum have always opposed an Article V Convention by use of misstatements and other misleading information. Primarily through the work of FOAVC, by use of documented public records and other verifiable information, these misstatements have been corrected. FOAVC has always strived to correct the record regarding any misstatements about a convention regardless of whether the statements are from proponents or opponents to a convention.

It is quite clear that as the truth about an Article V Convention has emerged and the deliberate misstatements have been corrected, the first stage of an Article V Convention, has been reached. This can be classified as the "why" stage of a convention call. The "why" stage deals with the question as "why" should a convention be called by Congress. During this period, the states decide for various political reasons that amendments should be proposed to the Constitution and thus submit the requisite applications to Congress for a convention call. As the states have submitted well in excess of the requisite 34 applications, it is clear the "why" stage of a convention call has been satisfied. However, as already noted, a convention call is based, not on the subject matter of any particular amendment contained within a state application, but on the actual application itself by the state. Thus, a convention call is based on a simple numeric count of applying states (34) with no terms or conditions. This basis of convention call is supported by irrefutable historic record and government statements made in Supreme Court rulings.

The next stage in a convention call is the "how" stage which deals with the operational aspects of the convention itself. In truth, most constitutional scholars have not researched this aspect of a convention that well. Instead of conducting actual research to determine whether sufficient law exists to regulate a convention, most scholars and convention opponents prefer to state a convention should not be held as its operational aspects are unknown and thus, according to them, potentially "dangerous." Nothing is further from the truth. In fact, the historic record, Supreme Court rulings and other such public documentation provide more than enough law, and thus answers, to satisfy all questions regarding the operational aspects of an Article V Convention. In sum, there is more than sufficient well settled law to regulate a convention making its operational aspects no more mysterious or dangerous than any other action of any public governmental body. The same laws that regulate these bodies also apply to a convention.

However, a few scholars have researched the operational aspects of a convention. One such report of the operational aspects of an Article V Convention was released by the Goldwater Institute in September, 2010. The report, entitled, "Amending the Constitution by Convention: A Complete View of the Founders’ Plan" was written by Professor Robert G. Natelson. This report proposes a method whereby the states can control the agenda of a convention. The report suggests the states, by use of fiduciary law principles, can control all aspects of an Article V Convention. Under this plan, the convention becomes no more than a politically pre-determined event with little input or control from the people. The report can be read at Goldwater Institute.

Because of concerns regarding what type of convention this plan will create and to correct factual errors within it, I am releasing a rebuttal to the report. The Rebuttal to the Report (or click here for an End-Note version) corrects assumptions in Professor Natelson's report that assert fiduciary law principles can be used to control an Article V Convention. My six months of research leads me to believe fiduciary law principles, unless they are specifically expressed in the Constitution, have no place in constitutional law, let alone serving as the basis of regulation of an Article V Convention. The rebuttal uses historic records of the 1787 Federal Convention, (something not found in Professor Natelson's report) Supreme Court rulings and other relevant public records to demonstrate the Founders had at least two opportunities during their debates over the amendment process in the 1787 convention to introduce such fiduciary controls by the states into Article V. The Founders rejected these opportunities on all occasions and instead relied on other means to allow control of a convention.
The rebuttal agrees with Professor Natelson on one central point. The rebuttal concludes the state legislatures may, if they wish, politically control convention proposal agenda in real time, that is, during the actual convention or, if the states wish, even before a convention occurs. Yet the rebuttal proposal simultaneously allows for a convention to freely discuss and propose whatever amendments it wishes if it is so politically inclined. The convention thus ceases being a figurehead convention as proposed by Professor Natelson and is free to be the constitutional think tank intended by the Founders with full, open, public participation of the people rather than being prone to a pre-determined political outcome controlled by special interests. Unlike Professor Natelson's report, the rebuttal proposal employs Supreme Court rulings as its basis of support. In sum, while the rebuttal proves the method of convention control proposed by Professor Natelson is constitutionally, legally and politically unfeasible, it offers an alterative which satisfies all of these criteria.

I believe this proposal completely eliminates the last argument of those opponents who support Congress' ability to veto the Constitution and not call the convention when it is required to do so. The proposal advances a political solution, long argued as impossible by convention opponents. The proposal is based on solid constitutional grounds. Combined with other answers that FOAVC and others have advanced in the past few years, the questions to the "how" phase of an Article V Convention have been answered. Thus, there is no basis on which to object to a convention as the overreaching argument that operational questions have no answer is incorrect.

Thus, with the release of this rebuttal, the issue shifts to the third phase of an Article V Convention call--the "when" stage. "When" will political pressure be brought upon Congress to compel it to do its required duty and call an Article V Convention.
If you will consider reading this report and passing its contents to as many people as you know that are interested in Article V Convention or have questions regarding it, it would be appreciated. Thank you for your time.

Bill Walker
FOAVC Co-Founder
Picture of Lock Piatt
Re: Response by Bill Walker to Goldwater Institute Report...
by Lock Piatt - Saturday, 28 May 2011, 01:17 PM
I will take issue with both you and Rob on the available remedies for the people under Article V.

I find nothing in the Constitution or Article V that prevents 38 States from creating an amendment as instructed by the people of the many States to say revoke the 14th, 16th and 17th amendments. Then this amendment is submitted to the vote for approval of 38 State legislatures for approval; after which it is resubmitted for a ratification vote by each State. If the amendment is so ratified then it is presented to Congress and it becomes the law of the land.

[or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;] In other words 3/4 or 38 States can change the Constitution anyway they desire and Congress has no say in the matter.

There is no language that says it can not be done by direct amendment by 3/4 of the States. There are volumes of writings by the Founders as to nullification and the Article V protections. These methods were devised to allow a peaceful rebellion by the States to protect the people from an oppressive usurping Federal Government and Congress gone wild.

If fact many said it was the absolute duty of the States [legislators] to protect the people from a usurping government. Many in fact went so far as to say that defense is mandatory on the States to nullify unconstitutional laws.

So, In my estimation there is no prohibition of the use of the Article V amendment process by the States alone.

Article V - Amendment Note1 - Note2 - Note3

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.
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Re: Response by Bill Walker to Goldwater Institute Report...
by Richard Michael - Tuesday, 8 May 2012, 11:29 AM

In your rebuttal, on page 77, in the section on 'The Recision [sic] Problem', you state:

"Therefore, unless Article V expresses a power, authority or act it is not part of Article V."

You also assert that rescission has no meaning outside of contract law while citing Black's Law Dictionary. The plain meaning of the word rescission is the act of rescinding which is to invalidate by a later action. (See http://dictionary.reference.com/browse/rescind .)

You use this reasoning to assert that there is no authority for rescission because Article V does not provide it.

Using that reasoning, how does an application by a State ever expire or become satisfied or extinguished? There is no explicit provision for expiration in Article V. There is also no explicit language that ever removes the application from a pending status. Logically, one might expect that by issuing a call for a convention, the Congress will have fulfilled its obligation and all previous applications would be extinguished by that call or merged into the convention. But there is certainly no explicit language to that effect.

Under your analysis, the call for a convention by Virginia in 1789, which is posted on the FOAVC web site, will, forever, be in effect. I don't believe that the Constitution calls upon our governments to dispose of common sense. The Virginia call in 1789 was to prod the Congress to fulfill the understanding of the 1787 convention and the ratifying States to produce the promised amendments which are now known as the Bill of Rights. Congress obviated the need for a convention for that purpose by proposing twelve amendments later in 1789.

Based on what happened in 1789, one might reasonably and logically infer that a precedent exists that when the Congress proposes an amendment to the Constitution that all previous applications for a convention are extinguished. Surely, logic and reason dictate that certain actions by Congress would act as a reset button for the pending applications.

Nor is there any explicit language that the Congress must do any other act than simply 'call' a convention. Article V does not articulate that a convention must occur, nor that Congress must perform any other act. The word 'call,' however, does have many common meanings, at least one of which implicitly may be interpreted as doing something more.

There is also no explicit authority for Congress to require the States to attend such a convention. Congress does not have the authority to force a State to do anything (excepting, for the moment, the Reconstruction Acts). Nor does Article V give Congress the authority to determine what would constitute a quorum of States in attendance before a convention could be called to order. What would happen if 15 States refused to send delegations? What would happen if 25 States refused?

While I'm in agreement that the only acts authorized to a State by Article V are to apply to the Congress for a convention and to ratify an amendment, it's unreasonable to expect to find every action surrounding Article V to be contained in its single sentence.

The Constitution is a set of principles. The Constitution is not verbose. It does not prescribe everything that may or may not be done. (Certainly it does not contain a complete list of the inalienable rights of the People, but that does not mean that those rights do not exist.) The Constitution does not speak to modes of communication (how the call is to be issued) or modes of transportation (how delegates must travel) or who should pay for the costs of a convention. It was not intended to hamstring posterity by using the methods of the time it was written.

The principle of Article V is that the Constitution may be amended. It sets out two methods that amendments may be proposed and two methods that amendments may be ratified. As to the manner in which those methods are carried out and all the details surrounding the execution of those methods, Article V is silent.

In the methods where the Congress is the actor, it is reasonable and logical to presume that Congress also has the power to fill in the details as it deems appropriate for the time and circumstances. Similarly, where the States are the actors, it is reasonable and logical to presume that the States have the power to fill in the details.

If a State is granted the power to make an application, it is logical that a State also has the power to alter or withdraw that application as it deems appropriate over time. You cite no court opinion that has declared that such a power does not exist.

So, I submit to you, that you may not reasonably use the "express power" argument only in those instances where it suits the conclusion that you wish to reach.

In my opinion, based on the explicit power granted to Congress to "call a Convention," Congress has the implicit power to do everything necessary to attain the intended result, including writing the bylaws for a convention which would encompass the purpose and all the rules under which a convention would operate.

Since Article V is silent on the issue of selecting delegates to a convention, it is both reasonable and logical that the States have the power to determine how their own delegates are selected, just as the States exercised that power for the ratification of the 21st Amendment.

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Re: Response by Bill Walker to Goldwater Institute Report...
by Scott B - Saturday, 2 June 2012, 04:11 PM
Thank you, Bill, for beginning this discussion.

Sorry, but I’ve looked at the Natelson papers and your rebuttal, and I have to agree with Natelson. The Constitution is a contract for agency, and fiduciary principles do apply. A constitution is a contract made between sovereign citizens, who are the principals, to establish a governmental agent who is obligated to exercise defined powers for the mutual benefit of the principals. The principals in turn incur obligations to support the agent so the agent can meet those obligations.

That is what an American style of Constitution is. That is what makes it such an important document in world history. The Framers threw off the old style of government by birth, which is aristocracy, and replaced it with a new style of government which is government by contract. In doing that they broke the established system of aristocracy which is inherently oppressive. While no manmade law, fiduciary or otherwise, can apply to a national constitution, fiduciary principles can and do.

I have the firmest agreement with Natelson in that I recognize that we citizens must have the ability to bring our out of control agent under control in specific necessary ways when the agent is unable to do so itself. We must be able to prescribe specific remedies. If we leave it up to our out of control agent to fix itself, it will not. It will just do more out of control and oppressive things, and it will not properly address its own overreach. That is its nature. The Federal government has had ample opportunities to curb its madness for power. It has not exercised that potential ability. In your rebuttal you gave me no reason to believe it will do so in the future, even if the States apply to Congress for open ended amendments and Congress follows the amendment process.

Many of your arguments against Natelson are based on statements from the out of control agent. You refer to Supreme Court discussions and Legislative discussions. Of course they lean in favor of denying the people their right to bring their agent to heel. The Court and the Legislature are the government. They are the out of control agent. I cannot hear the arguments of that agent. If a member of government says something reasonable as a fellow citizen, fine. But as government officials their words are void of authority and have no meaning. Asking the organs of government to judge whether they are violating the contract is no different than asking robbers to judge whether or not they have violated the law after breaking into a house and stealing from it. Their claims have no value in this context.

Demanding government to reform itself is no different than demanding the robbers improve our home security system after they have broken in and stolen our goods. That will never work.

To argue as you have that the power mad, out of control agent speaks lucidly, with neutrality, and with authority when stating that only the agent has the power to bring itself under control, is to argue in favor of oppression. You seem to argue in favor of tyranny-by-contract. I do not understand your position on this at all.

What will cause the out of control agent to choose to bring itself under control today, when it has not done so to date, and it has had ample opportunity to do so in the past? Nothing, because nothing substantive has changed. No flaws in the structure of government have been corrected.

The Legislature ignores the States’ pleas for an Article V Convention because it can. There is no neutral third party forcing them to obey the Constitution. In effect, there is no cop on the street to arrest and charge the robber for breaking the law, and no court to try him. Until that problem is addressed, nothing will change in government. Most new amendments will eventually lead nowhere because there is no effective enforcement officer who requires the government to follow the terms of the contract, just as the government already ignores the Constitution seemingly at will today. There is nothing being tried today that has not been tried in the past and proven ineffective over the long run, except perhaps what I would like to propose here in your forum, which is to create that cop and judge and bring them into play.

We have every natural and moral right to change our form of government. We do not need to not beg for change from a wannabe oppressor. We would be fools to hope that all will turn out for the best when we ask the robbers to reform themselves of their own volition. There is nothing in it for them to do so. They would never give up that power.

Let me bring this into context a little more. The Constitution is our contract with each other. The Constitution is founded in the freedom of our personal sovereignty. It is not the government’s contract with us telling us what freedoms it will allow us to have with respect to its agency. We have the God given right to do whatever we want with our contract for government. If we want to void it completely, we may. If we want to change it, we may. If we want to leave it untouched, we may. If we want to do nothing and sit passively while the government steals all of our property, we may do so, which is what most Americans are doing today. If we want to repeat failed approaches to reforming government, we may do so, and unfortunately that is exactly what most so-called reformers are doing today; repeating ineffectiveness.

Hamilton pointed out in the last of the Federalist Papers, No. 85, that the Constitution was known to be flawed. It was a new thing, and the Framers had no way of knowing what problems would eventually present themselves. They needed to implement something useable and get it in place quickly. They left it up to a future generation to make reparations when those flaws became apparent. When we look at the condition of our government today, the trillions of dollars in national debt, the hundreds of thousands of dollars of debt that every child is born with today, the almost unchecked abuse of the Constitution by the government, the embarassingly open bribery of public officers (crony capitalism) , etc., etc., etc., we recognize that repair is necessary today, not tomorrow. We are the generation that must correct those flaws in the Constitution. If those flaws include an unworkable process for making necessary corrections, we must bypass those flaws, and use a workable process instead.

We citizens have the right to reform our government in any manner we see fit through whatever process suits us. That is the beauty and essence of the American form of government. That is the true meaning of liberalism. No person, government, agent of our creation, or any other power on Earth may rightfully deny us our freedom to do as we wish with our contract for government. No mere scratches on parchment can alienate us from our rights.

We prefer to reform government in keeping with our traditions. We prefer a structured, controlled and rational process of reform. We want to prevent poorly thought out change, and change made for “light and transient causes” such as Prohibition. We prefer peaceful change over violent and tumultuous revolution. The Constitution is our contract with each other to enjoy the benefits of a national government. It is not a permission slip for the Federal government to declare an unconscionable power, telling us that we the principals in the contract may not make specific and necessary changes to our contract with each other when the government lacks the ability to do so itself. That would be the very essence of despotism.

In your rebuttal you claim that having Congress amend the Constitution at will is preferable to the citizens reforming the government themselves through our States. You argue that putting the robbers in charge of creating a better security system with feedback from the residents (snicker) is preferable to letting the residents set up a security system of their own design without the manipulations of the robbers. Really, it's like the guy said. Government is not the answer to the problem. Government is the problem.

You claim incorrectly that Natleson wants to prevent open debate and discussion. Natelson made no such argument, directly or indirectly. He argued that the States have the power to require Congress to write specific changes. How would the 50 States come to a point of agreement except by open debate and discussion?

You claim incorrectly that Natelson wants to put just a few people in charge of making amendments, when he makes no such claim or supposition. Do you imagine some hidden power made of a just a few corrupt people with the ability to force an overwhelming majority of the States' governments to act according to its malicious will?

There is no such hidden power, Bill. What are you thinking? I do not follow you at all here.

We both envision a process in which the citizens are involved in the process of change. That is the correct way to approach this, certainly. But you ask that the citizens work with an openly abusive and corrupt agent to try to get the agent to change itself, with no effective leverage applied to the agent. As you of all people know, they are experts at avoiding the requirements of the citizens and abusing the terms of the contract. How do you come to believe that requiring Congress to do something non-specific will cause Congress to accomplish something specific and necessary, when they have not done so already? Do you seriously believe that the same organization that created some of the recent acts of absurdity and abuse will suddenly become wise and moral just because the States told them to write an amendment, any amendment? I’m not seeing it.

A firm requirement for effective change, coming directly from the citizens (through their States) will carry weight and leverage to force the employees of the governmental agent to act appropriately. They dare not say no if the citizens address this correctly.

Before government will act on change, the change must have firm support from the citizens. Will the citizens give firm support for vague and non-specific change? Not in your lifetime.

For change to be supported by the people it must be reasonable, and it must address the needs of the people while calming fears. Nothing creates fear more than the unknown. To minimize fears, the details of the change must be known before being pressed forward. The reform amendment, or amendments, must be spelled out in specific terms with arguments for and against those reforms clearly stated and understood before being presented to the States so they can make their Article V application to Congress. All of the dark places must be well lit and all the doors must be opened so the people can see that no “Gorgons, hydras, and chimeras dire” are hiding there. The enemies of reform will use the natural fears of the people to try to prevent reform.

Serious consequences for members of Congress for failure to comply with the terms of the contract, the Constitution, must also be included in the application, otherwise they may refuse to act, just as they have refused to act to date.

To bring about specific and necessary reforms to government, Natelson’s process fits the bill nicely. It allows the citizens to drive the process of creating specific reforms to specific problems of the Federal government when the Federal government is incapable of making those changes itself. It filters the citizens' requirements for change through a second party, the State governments, for reasonableness and practicality. It applies a formal process to minimize Federal hanky-panky and to help things change smoothly. It robs the fear mongers of their power by keeping the character and content of the reform apparent and exposed from its beginning.

A prescribed application for amendment from the States is in keeping with the writing of the Constitution, and it is certainly in keeping with the dominant law, which is the natural right of the citizens to make and have a more perfect Union. If we wish to ensure further propriety, we may expand the formal process by adding to the amendment application a requirement of a public referendum vote before the amendment is made to the Constitution.

I hope I have given you another perspective on this, one you have not considered before.

The Constitution is ours to do with as we wish. Pray that we never surrender this right.

-- Scott

(I have cross posted this on my blog Amorian.org)

Picture of Gordon Glatz
Re: Response by Bill Walker to Goldwater Institute Report...
by Gordon Glatz - Monday, 2 July 2012, 02:52 PM

"The Constitution is ours to do with as we wish. Pray that we never surrender this right."

I appears we already have, since we have done nothing to force their compliance. Gordon