ON SJR 1 – 11/28/18
132ndGENERAL ASSEMBLY OF OHIO – 2017-18
Chairman Coley and members of the Government Oversight and Reform Committee, thank you for the opportunity to present some arguments against SJR 1 – the joint resolution calling for an Article V Constitutional Convention of the States to limit power of the federal government and impose federal term limits. As a private citizen who also has led classes on the U. S. Constitution for more than 20 years, I would like to cite the three biggest reasons (there are many more) why an Article V Constitutional Convention is a very dangerous idea. These reasons are rooted in the definition of legal terms, verifiable history, and applying them to the resolution before us today.
No matter how delegates are chosen or by whom they are chosen, or what restrictions are placed upon them by those who choose them, once the convention convenes the delegates have what is known as “plenipotentiary power.”
Webster’s 1828 Dictionarydefines –
Plenipotentiary – (adj.) containing full power; or (noun) – a person invested with full powerto transact any business.
“Full power to transact any business.” These are very all-inclusive terms. Plenipotentiary power is an integral part of the parliamentary procedure. It is necessary from time to time to empower a body to write or re-write governing documents. That’s why Robert’s Rules makes it clear that the convention is the highest law making body of any organization. The question those of us who oppose this convention are asking is – What limits the highest law-making body? Lower law-making bodies (State General Assemblies)? How could they do this? SJR 1 claims the authority to name delegates, provide instructions to them and to be able to recall them for any breach of the instructions provided. While this sounds great, if the delegates to the Article V Convention are vested with plenipotentiary power – full power to transact any business – and they are the “highest law making body of any organization” – what enforcement authority do lower law-making bodies – the States – have to recall or control them? Simple and obvious answer – They don’t.
Delegates who are vested with plenipotentiary power HAVE THE LEGAL AUTHORITY TO DO ANYTHING THEY DEEM NECESSARY. They do NOT need to adhere to any limitations put upon them from anyone, or keep promises to stick to just the agenda they agreed to at any prior point in time. There is no higher-powered enforcement mechanism to “make them do” what anyone wants to make them do. They have been given the authority to change the Constitution, and are therefore, above the current Constitution, aboveState lawmakers, aboveanyone and everyone else. At this point in history, who could/would you trust with this type of power? Putting our entire Constitution on the table is irresponsible and unthinkable, but that is exactly what this Article V Constitutional Convention could do.
The Founding Fathers MET IN SECRET with instructions to amend the Articles of Confederation. They did not even release their notes until the last one of them had died. They also came out of these secret meetings with an entirely new document, our U. S. Constitution, scrapping the Articles of Confederation entirely. And they did it legally, demonstrating their plenipotentiary power to ignore the explicit instructions of 12 of the 13 States to simply amend the Articles of Confederation. [Note: Rhode Island boycotted the convention and did not attend.] Modern-day delegates could also choose to MEET IN SECRET so no one could monitor, much less have any input during their meeting times or have any idea what is being discussed or changed.
Simply put, there are none. The supposed “safety net” of the current Constitution’s requirement of three-quarters of the States having to ratify whatever the delegates come up with, is more aptly described as no net at all: The founders changed the ratification process at the same time they scrapped the Articles of Confederation. Modern-day delegates could do the same – CHANGE THE RATIFICATION PROCESS – and it would be completely legal – simply exercising their right to plenipotentiary power.
Mark Meckler and other proponents of this so-called Convention of States make statements that are inaccurate, misleading and even dangerous because they are all based on the false premisethat the States can control an Article V Convention. This is simply not true. And if your premise is faulty, as theirs is, then it is highly unlikely that your conclusions can be right. To illustrate this, I’ve included a copy of Mark Meckler’s previous testimony on this subject, with additional documents submitted with my testimony, with some challenges incorporated. Some (not all) of his false premises have been put into RED FONT followed by my brief counterpoint inBLUE FONT. Time will not permit me to review these to the committee verbally, and I respectfully urge you read over these later. It will only take about five minutes of your time.
So what is the answer to an out-of-control federal government? This problem will not be solved by more Constitutional amendments. How can we think that by adding amendments to a document that is being ignored will suddenly cause those who are ignoring it to begin to read, respect and enforce it? The true answer lies in “we the people” enforcing the Constitution we have. But how can we enforce something we don’t know? Mark Twain said, “A lie can travel halfway around the world while the truth is still putting on its shoes.” We must educate ourselves and our children on both the true contents and underlying principles of the U. S. Constitution, which is what my classes do. Then we must elect representatives who know these principles and have the integrity to uphold and enforce them. If they don’t, we need to replace them with people who will.
I want to close with a quote from Herbert Hoover who understood that our Constitution is part of our American heritage. At a reception for his 80thbirthday he said, “God has blessed us with…heritage. The great documents of that heritage are not from Karl Marx. They are from the Bible, the Declaration of Independence and the Constitution of the United States. Within them alone can the safeguards of freedom survive.”
Educating ourselves and our posterity in this heritage is the beginning of restoration, not more amendments. Winning the hearts and minds of individuals is not a quick fix, but it is the only true fix. Thank you for your attention and allowing me to testify today.
TESTIMONY OF MARK MECKLER, J.D.
ON A CONVENTION OF STATES/CONSTITUTIONAL CONVENTION
132ND GENERAL ASSEMBLY OF OHIO REGULAR SESSION
My name is Mark Meckler. I am an attorney residing in California, and I am the Co-Founder and President of Citizens for Self-Governance and the Convention of States Project.
Honorable committee members, the resolution before you offers a structural solution to a structural problem. It offers you the chance to restore the balance of powers in our federal system by using your constitutional authority under Article V.
Congress and administrative agencies have long usurped powers that rightfully belong to you– the elected lawmakers of Ohio. The activities of Washington, D.C. today would have been unthinkable to our Founding Fathers. Federal laws and regulations now touch upon every aspect of our lives: What kind of light bulbs we can buy. Farming practices. School curriculum. School lunches. Health care and insurance.
Meanwhile, we live under the shadow of a crushing national debt that threatens to enslave our grandchildren and their children. All of this comes courtesy of an activist Supreme Court, which has vastly expanded federal power through its precedents. The Court has created loopholes to the Constitution’s limits on federal powers, and those loopholes will remain there until someone closes them.
That “someone” has to be you. It’s obvious that Congress is never going to curtail its own power—at least not definitively or permanently. It would take decades for the Supreme Court to reverse enough precedents to eliminate the constitutional loopholes it has created, and that is assuming that the right cases reached it in the right posture, and that we had decades of a solidly, consistently constitutionalist Supreme Court. The president could choose to act with some restraint during his term—maybe—but can do nothing to restrain future presidents.
Fortunately, in their wisdom, our Founding Fathers predicted that this very situation would arise. Toward the very end of the Constitutional Convention, George Mason specifically predicted that the federal government would one day overpower the states. And that is why he insisted that Article V include a way for states to propose constitutional amendments through a state- controlled convention. (Note: State-initiated YES; State-controlled – NO! Read Article V and remember the definition of Plenipotentiary power.)
Mason’s proposal was adopted without dissent. This final version of Article V gave the states the ultimate constitutional power—the power to unilaterally amend the Constitution of the United States, without the consent of Congress. (Note: NOT TRUE! Neither Congress nor the States have the ultimate power – the delegates have ultimate power, aka Plenipotentiary Power.)
The way it works is that when 2/3s of the state legislatures (34) pass resolutions applying for a convention to propose amendments on the same topic (which serves as the meeting agenda), Congress has a constitutional duty to name the initial time and place for the meeting and then stand back and let it happen. Each state chooses and instructs its delegation of commissioners, who attend the meeting and work with the other state delegations to hammer out possible amendment proposals on the topic specified in the 34 state applications. Because they act as agents of their state legislatures, the commissioners only have legal authority to act pursuant to that specified agenda, and only to act in pursuance of their legislature’s instructions. Every state gets one vote. (Note: NOT TRUE! This process is not written down in the U. S. Constitution, but rather was created by proponents of the Convention of the States, again depending on the false premisethat the States control the Convention.)
Any proposals that are supported by a majority of the states at the convention stage then get submitted back to the states for ratification. Only when 38 states ratify a proposal can it become part of our Constitution. (Note: Only true under the CURRENT ratification process, which these delegates have plenipotentiary powerto change as they see fit.)
Now some people will try to prey on fear by telling you that because some of these details are not explicitly stated in the text of Article V, we have no idea how an Article V convention would operate. But that simply is not true. We know what a convention of state is, and the basics of its operation, because we have a very rich history of interstate conventions in America.(Note: We do? Where? I challenge Meckler to name these.) That history is the very reason this process was provided as an alternative in Article V. Just as we know what a trial by jury looks like without having every detail written into the Constitution, we know how an Article V convention would function. (Note: We all know what a jury trial looks like because we have had thousands such trials in this country, both in the real world and on TV. But we have NEVER had an Article V convention. We have had only one “amendments” convention, the federal convention of 1787 that resulted in the overthrow of our first Constitution – the Articles of Confederation and the government it created – and the establishment of a new Constitution of 1787, and the new government it created.)
By passing the resolution before you, Ohio will effectively be raising its hand to say, “Yes, we believe it is time for the states to gather to consider proposing amendments that will re-balance federal power with state power.” Specifically, the Article V convention called pursuant to the resolution before you would be limited to three topics for amendment proposals:
Now this does not mean that the convention must propose an amendment on each of these topics. Rather, these topics describe the outer limit on what would be germane for consideration at the convention. (Note: While the States can set these limits, the delegates ultimately are vested with plenipotentiary power to act or not act on whatever they see fit.)
With this approach, the convention could propose a balanced budget amendment accompanied by limitations on Congress’ spending and taxation powers. It could propose limits on executive power, federal agencies, and impose real checks and balances on the Supreme Court.
Most American citizens, and the vast majority of state legislators I speak with as I travel the country, agree that our nation is in desperate need of a re-balancing of power between the federal
government and the states. The Article V convention for proposing amendments is the constitutional process designed to address that problem.
In fact, in George Washington’s farewell address to the American people, his final admonishment to us was this: “If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
I don’t think our Founding Fathers would be surprised that the federal government has claimed more than its constitutional share of power. They would be surprised, I think, that we have not used the most effective tool they gave us for curbing it.
History will remember us, one way or another. We will either be remembered as the generation that finally succumbed, completely, to federal tyranny, or the generation who stood and defended the torch of liberty when it was flickering dangerously low.
As Ronald Reagan said, “You and I have a rendezvous with destiny. Will we preserve for our children, this, the last best hope of man on earth, or will we sentence them to take the first step into a thousand years of darkness? If we fail, at least let our children and our children’s children say of us we justified our brief moment here. We did all that could be done.”
I am out here on the road, away from my home and my family, raising and training a grassroots army of self-governing citizens in all 50 states and speaking to their state legislators because I believe I have no other choice. Let it never be said of our generation that we failed to do all that could be done. Thank you for allowing me to testify today.