Dare Inquire Representatives Truth
Well-Informed Citizens are the Most Powerful Force in our Constitutional Republic
Adoption of U.S. Constitution at first Constitutional Convention To Be Done By 9 States,
rather than by unanimous vote of 13 as under Articles of Confederation
Such an Alteration could occur again during a Second Constitutional Convention (Con-Con)
The ratification of the conventions of nine States, shall be sufficient for the establishment of this constitution between the States so ratifying the same.
Done in Convention, by the unanimous consent of the states present, the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the independence of the United States the twelfth. In witness whereof we have hereunto subscribed our Names.
GEORGE WASHINGTON, president, And Deputy from Virginia.
Monday, September 17th, 1787.
The States of New-Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia:
That the preceding Constitution be laid before the United States in Congress assembled, and that it is the opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its legislature, for their Assent and Ratification; and that each Convention assenting to, and ratifying the Same, should give Notice thereof to the United States in Congress assembled.
Resolved, That it is the Opinion of this Convention, that as soon as the Conventions of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a Day on which Electors should be appointed by the States which shall have ratified the same, and a Day on which the Electors should assemble to vote for the President, and the TIme and Place for commencing Proceedings under this Constitution. That after such Publication the Electors should be appointed, and the Senators and Representatives elected: That the Electors should meet on the Day fixed for the Election of the President, and should transmit their Votes certified, signed, sealed and directed, as the Constitution requires, to the Secretary of the United States in Congress assembled, that the Senators and Representatives should convene at the Time and Place assigned; that the Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President; and, that after he shall be chosen, the Congress, together with the President, should, without Delay, proceed to execute this Constitution.
By the Unanimous Order of the Convention,
GEORGE WASHINGTON, President
WILLIAM JACKSON, Secretary
John Langdon, Nicholas Gilman
Nathaniel Gorham, Rufus King
William Samuel Johnson, Roger Sherman
William Livingston, David Brearley, William Paterson, Jonathan Dayton
Benjamin Franklin, Thomas Miffin, Robert Morris, George Clymer, Thomas Fitzsimons, Jared Ingersoll, James Wilson, Gouverneur Morris
George Read, Gunning Bedford, Junior, John Dickinson, Richard Bassett, Jacob Broom
James M'Henry, Daniel of St. Tho. Jenifer, Daniel Carrol
John Blair, James Madison, Junior
William Blount, Richard Dobbs Spaight, Hugh Williamson
John Rutledge, Charles Cotesworth Pinckney, Charles Pinckney, Pierce Butler
William Few, Abraham Baldwin
attest, William Jackson, Secretary
Vol. 11, No. 05
March 6, 1995
Table of Contents More on Constitutional Convention
by Don Fotheringham
Beware Mike Leavitt's "Conference of the States"
Utah Governor Mike Leavitt seems to think the United States Constitution is obsolete. He has teamed up with Governor Ben Nelson of Nebraska to set in motion the mechanism for making fundamental changes to our constitutional structure. A good deal of groundwork has already been laid for what the two governors have labeled a "Conference of the States," clearly one of the most startling and revolutionary developments of our time.
Governors Leavitt and Nelson are supported (if not led) by the Council of State Governments and the National Governors' Association, in cooperation with two other organizations, the National Conference of State Legislatures and the U.S. Advisory Commission on Intergovernmental Relations. Through these organizations elaborate plans have been devised in which these quasi-official groups have designated themselves "convenors" of a major conference to be held later this year, most likely in Philadelphia. This extraordinary affair is intended to emulate the historic convention of 1787 that drafted the U.S. Constitution. But lest there be any real opposition to the smooth-running movement, the governors and their "convenors" carefully avoid referring to the Conference as a constitutional convention (con-con).
For the past 200 years, efforts to call a federal convention have been firmly opposed by legal scholars and citizens alike. Although a con-con is a legal mechanism established by the Constitution, it is an amendatory process that cannot be limited or controlled.
In spite of assurances by Governor Leavitt that the Conference of the States will not be a con-con, he openly advocated one in his first position paper and in public statements. The Salt Lake Tribune for April 25, 1994 reported:
On Thursday, the governor unveiled a proposal to gather support for an amendment to the U.S, Constitution giving states authority equal to the federal government's. He took his plan for an informal states' conference and a possible constitutional convention to the Western States Summit in Phoenix. The proposal is a manifesto that urges states to organize against their "subordinate status" under the current federal system.
Leavitt's speech was not well received by the audience. Here is the reaction of one state representative, Utah's Met Johnson, as quoted by the Salt Lake Tribune: "Mike got all wild and weird on us with this constitutional convention speech in Phoenix. The Constitution isn't broken; we don't want to open it up .... This is about the federal government regulating us into oblivion, and when he talked about that constitutional convention stuff, he made a lot of Westerners really angry."
While a lot of Westerners were indeed angry and concerned, apparently no one at the intergovernmental level objected to the governor's con-con plan, which is to be presented to an unsuspecting public, not as a con-con, but as a Conference of the States. After the Western States Summit meeting, the Salt Lake Tribune reported that "Leavitt also said he has rewritten his position paper, deleting any reference to a constitutional convention, which he said had been misconstrued."
Although Mike Leavitt has toned down his speeches, his carefully written plan still comprises every ingredient needed to harness the powers of a federal convention. The choice of language makes the Conference seem harmless to many state legislators who have been quick to pass "Resolutions of Participation" that are being introduced in one state after another.
A constitutional convention is a meeting authorized by the several states and comprised of delegates appointed by their legislatures for the purpose of considering and adopting amendments to the federal Constitution. To avoid being presumptive concerning the role of this new convocation, we hereby quote from the "Action Plan" of the governors:
A Conference of the States would enable State representatives to consider, refine and adopt proposals for structural change in our federal system.
So isn't that the essence of a federal convention? Essence or not, the organizers are quick to deny they are hosting a constitutional convention, or even laying the groundwork for one. We agree that their conference is certainly not being called pursuant to Article V of the Constitution, which, in addition to defining the procedure that authorizes Congress to initiate amendments, establishes an alternate route (circumventing Congress) for state-initiated amendments. Yet, neither was the Convention of 1787 called according to the established rules of the day. The original 13 states ignored the amendment process established in the Articles of Confederation. The delegates who attended the 1787 convention were vested with power by their state legislatures, power that extended far beyond their constitutional mandate.
Power of a Free People
Records of the 1787 Convention are clear about the consolidated authority of the states and the power the states vested in their delegates. New Jersey's William Patterson objected to the course the Convention was taking and said:
We are met here as the deputies of 13 independent, sovereign states, for federal purposes. Can we consolidate their sovereignty and form one nation, and annihilate the sovereignties of our states who have sent us here for other purposes?
Annihilation of state sovereignty, of course, did not occur; but other purposes most certainly did. The main point is that the 1787 Convention possessed that power, and the delegates exercised it. Is the consolidation of that power being attempted again in 1995 by Governor Leavitt and his Conference of the States? A realistic assessment indicates that a convention-empowered conference is exactly what is envisioned. But while the product of the Convention of 1787 turned out to be the most nearly perfect form of government yet devised, the result this time could be disastrous.
But what about the fact that Article V of the Constitution requires that two-thirds of the states apply for a convention in order for one to be called? The Conference of the States seeks only a majority of 51 percent. Again, the organizers of the planned Conference have obviously done their homework. History shows that a quorum of 51 percent was the minimum needed some 200 years ago to consider, propose, and adopt amendments to the federal system. Thus, our Founders met in Philadelphia and opened the Convention on May 25, 1787 with only seven (a simple majority) of the 13 states represented. That is precisely the minimum percentage wanted by the governors and convenors in the process that is now under way.
The name of the summit to be held this year in Philadelphia -- whether it is called a conference, convention, convocation, assembly, discussion, deliberation, or whatever -- is of no consequence. But the process by which it is being set in motion, the formal appointment of its delegates, and the legal instruments that authorize it, amount to far more than a friendly meeting of state leaders. The organizers have latched onto a principle that is not well known by our citizenry: the consolidation and mobilization of the power inherent in a free people. Congress reaffirmed this principle in an extensive joint resolution in 1935: "The government of the United States is not a concession to the people from some one higher up. It is the creation and the creature of the people themselves, as absolute sovereigns." This concentration of collective right, formally assembled, portends the most serious of consequences.
Those inherent powers of the people when consolidated are superior in every respect to government. In 1911 Senator Weldon Heyburn of Idaho sounded a warning while debating the matter on the floor of the Senate: "When the people of the United States meet in a constitutional convention there is no power to limit their action. They are greater than the Constitution, and they can repeal the provision that limits the right of amendment. They can repeal every section of it because they are the peers of the people who made it."
"It is not a constitutional convention," Governor Leavitt now insists. But his assurance inspires little confidence after one reads the position papers of the intergovernmental groups he belongs to. In order to demonstrate the audacious nature of their "Action Plan for Balanced Competition in the Federal System," we print here their own summary of the grand scheme, with bracketed numbers and bold type added for emphasis:
[1.] We propose a process that would consolidate and focus state power. This process would culminate in an historic event called a Conference of the States.
[2.] In each state legislature, a Resolution of Participation in a Conference of the States will be filed during the 1995 legislative session. The resolution authorizes the appointment of a bi-partisan, five-person delegation of legislators and the governor from each state to attend.
[3.] When a significant majority of the states have passed Resolutions of Participation, a legal entity called the Conference of the States, Inc., will be formed by the delegates from each state, acting as incorporators. The incorporators will also organize and establish rules, assuring that each state delegation receives one vote.
[4.] The actual Conference of the States would then be held, perhaps in a city with historic significance such as Philadelphia or Annapolis. At the Conference, delegations would consider, refine and vote on ways of correcting the imbalance in the federal system. Any item receiving the support of the state delegations would become part of a new instrument of American democracy called a States' Petition. The States' Petition would be, in effect, the action plan emerging from the Conference of the States. It would constitute the highest form of formal communication between the states and Congress. A States' Petition gains its authority from the sheer power of the process the states follow to initiate it. It is a procedure outside the traditional constitutional process, and it would have no force of law or binding authority. But it must not be ignored or taken lightly because it symbolizes to the states a test of their relevance. Ignoring the petitions would signal to the states an intolerable arrogance on the part of Congress.
[5.] The States' Petition would then be taken back to the states for approval by each state legislature. If the Petition included constitutional amendments, those amendments would require approval by a super-majority of state legislatures to continue as a part of the States' Petition.
[6.] Armed with the final States' Petition, the representatives of each state would then gather in Washington to present the Petition and formally request that Congress respond.
A reading of the bold type tells it all: This whole effort, labeled a "conference," is in reality a call for a constitutional convention. The "Action Plan" does indeed circumvent the constitutional process of Article V, but it very cleverly incorporates every ingredient necessary for a free people to change their form of government. Although in defiance of existing constitutional procedures, the organizers apply a process based on the principle embodied in Paragraph 1: A free people are sovereign, and when acting through their state they can consolidate that power and reform their government. This principle was inherent in the founding of our nation and is obviously well understood by the designers of this dangerous plan.
Disclaimers woven carefully into the Action Plan, such as the assurance in Paragraph 4 that "it would have no force of law," are unwoven by the fact that a majority of the states are required to pass formal legislation, as in Paragraph 2, authorizing the meeting and appointing official delegates to attend the affair. There would be no need for legal instruments from the states if a delegation of legislators wanted to attend a conference that "would have no force of law."
We could sympathize with enthusiastic public servants who seek only to build the attendance of their meetings. But in this program there will be no meeting at all until (or unless) a majority attends, as required in Paragraph 3. But if there were no pervasive reason for a majority to be there, the conference date could be set now, immediately. There would be no need to wait until 26 states are locked in. If only 49 percent attended, who would really care?
But the organizers do care, and it is of crucial importance to them because that majority will certify the power they seek in their convention, just as stated by South Carolina delegate Charles Pinckney at the Constitutional Convention of 1787: "The assent of a given number of the States shall be sufficient to invest them and to bind the Union as fully as if they had been confirmed by the Legislatures of all the States."
Paragraph 3 embodies another important precedent set by the first Convention: The establishment of a one-state, one-vote rule.
In Paragraph 4 we find the convening of a deliberative body, the core element of a convention, authorized to consider, refine, and vote on ways of "correcting" the federal system. System corrections are made only at the convention level. Here the organizers are referring to the process of making fundamental, structural, constitutional changes in the federal system. As Paragraph 4 states, virtually all of the position papers of this movement refer to "correcting the imbalance in the federal system."
Violations by the federal government require nothing more than enforcement. States can assist in this enforcement by refusing to accept federal funding of unconstitutional programs and by refusing to implement unconstitutional unfunded mandates. But structural problems in the federal system, if they exist, can be corrected only by amendment, and, of course, that is what the Conference of the States is all about. In essence, the organizers' plan adheres to the Article V convention role of "proposing amendments." But their creation of a "new instrument," which they call a "States' Petition," is nothing more than the final document produced by the convention (that is, the "conference"). They modestly grant that their petition is "the highest form of formal communication between the states and Congress." Yet if the scheme is actually carried out and amendments are adopted, it would be far more than a mere "communication." It would be the highest form of sovereign power that could be exercised by the states over Congress and over the entire federal government.
Document of Amendments
What the organizers call a States' Petition will in reality be the instrument that contains the amendments to be added to the Constitution. It is difficult to find any reason for contriving a new term for this document except to imply that "there ain't nobody here but just us petitioners." Paragraph 5, in essence, defines the ratification process. The certified document of amendments (or their States' Petition) is to be sent to the states for approval by a super-majority. If acting under Article V they would need the approval of three-fourths of the states. But then, inasmuch as this whole promotion relies on brass and audacity, the organizers would likely settle for whatever number of states seem inclined to ratify. In the previous constitution (the Articles of Confederation) a ratification of amendments was required by all 13 of the states. A precedent was set, however, when the Convention lowered the necessary ratification from 13 to nine states (three-fourths of the states).
Madison's notes on the 1787 Convention express the consternation of at least one delegate who opposed reducing the number of states needed for ratification:
Mr. [Elbridge] Gerry urged the indecency and pernicious tendency of dissolving in so slight a manner, the solemn obligations of the articles of confederation. If nine out of thirteen can dissolve the compact, six out of nine will be just as able to dissolve the new one hereafter.
Perhaps the organizers hope that those state legislators who, for the past 20 years, have steadfastly refused to call a convention, may not recognize the serious implications of this new effort. One way to obfuscate its convention-like process would be for the con-con advocates to use a lot of newly contrived terms -- terms which appear harmless to starry-eyed state legislators, but which are clear to the intergovernmental cabal pushing through the process.
Right now it is critically important to the Conference task force to get the Resolutions of Participation passed in at least 26 states as quickly as possible. It looks very much like a high-pressure power game because the resolutions are being thrown through statehouses like hardballs. Most are being passed on voice votes, are given little or no committee hearing, and are being steamrolled through the voting chambers.
The bodies of all the Resolutions of Participation are the same for all states; they typically begin with the following statement of purpose:
Calling for a Conference of the States to be promoted and convened by the Council of State Governments for the purpose of restoring balance in the federal system and supporting [name of state]'s participation in such a Conference.
Do the American people understand that their sovereign powers are set to be consolidated in an instrument that authorizes a private intergovernmental group to tinker with our federal system? And are the governors and state legislators so flattered by the national attention beckoned by this summit that they will vote for a Resolution of Participation without challenging it? Has no American official asked why he should vote for a measure that empowers a private group to serve as convenors of any kind of official meeting? Has no one questioned the provision that the Conference must be legally incorporated? Will 7,400 state legislators (or even half of that number) vote in favor of a measure that includes a clause stipulating that "at least twenty-six legislatures adopt this resolution without amendment"?
A vested interest in this measure runs rather conspicuously in the legislative leaders who have appointed themselves a seat at the Conference before the bills have even been introduced. Little do they comprehend the price our nation will pay if those short-sighted state legislators -- and their pride-smitten governors -- think they can fill the seats of Washington, Madison, or Hamilton at Independence Hall in Philadelphia.
Paragraph 6 is pure fluff. There is no need for a formal ceremony to present ratified amendments to Congress. A long-established rule holds that an amendment goes into effect on the day it is ratified by the legislature of the last necessary state. Two-hundred and fifty delegates need not appear in Washington and cower before Congress to obtain its acceptance of constitutional amendments that originate through the consolidated force of the states.
Considerable ingenuity has gone into selling this affair to the states. Those who want structural change in our system have positioned themselves so that they appear to be rallying around the banner of the Tenth Amendment. A virtual explosion of articles, editorials, and voices in praise of the Tenth Amendment have emanated from every clime and every persuasion. Establishment writers from George Will to David Broder have addressed the subject like tried and true "conservatives." Even President Clinton has joined in with the Tenth Amendment chorus.
Either by seizing the moment or by creating it, the Conference promoters have obtained an all-American launching pad for their upcoming extravaganza. To many Western leaders the Tenth Amendment means getting the federal government out of their pockets and off their backs, as well it should. But in the East and North, where welfare-state programs abound, the Tenth Amendment is often used as an argument for having the federal government pay for its unconstitutional mandates. In the South it often means the restoration of states' rights. Such multi-purpose meanings of the Tenth Amendment are facilitated by repetitious reference to a patently false notion that "imbalance" in the state-federal relationship is a terminal illness that afflicts our nation.
At a recent meeting of the Council of State Governments, Governor Mike Leavitt declared:
Balance will only be restored in the way intended by Madison, Jefferson, and Hamilton when states take the initiative. As state leaders, with our allies in local governments, we must step up to our constitutional obligation and compete for power in the federal system. States have a place at the constitutional table. It is a proper role -- in fact the obligation and stewardship -- of states to be jealous and protective of their role and to fight for balance.
Surely Mr. Leavitt realizes that state and federal powers are purposely out of balance -- and that the balance is tilted heavily in favor of the states -- because our Founding Fathers planned it that way. The profound work of the Convention of 1787 gave only a few specified powers to the federal government, meaning that infinitely innumerable rights, powers, and privileges of the people remained at the state level. The United States Constitution, in its purest form, exemplifies the greatest imbalance in the history of human governance. Before the Constitution was ratified, Madison affirmed this planned imbalance in the state-federal relationship in The Federalist Papers, #45:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.
The Conference of the States meets every requirement for a constitutional convention even though it has not been called pursuant to Article V of the Constitution. It would have the legal force of a free people if its proposals were adopted. It would make no difference whether Congress approved or not, since the whole people are superior to all institutions of government and have authority over them.
But should the Conference of the States actually get under way and take on the Constitution, it is hard to know what this constitutional powerhouse would actually do. After initially coming out for a strong state role, Leavitt backed off from that position, as noted in the April 25, 1994 Salt Lake Tribune: "Explaining that he had 'migrated ideologically' from a position of state primacy, Leavitt said he now can 'more fully appreciate the need for a federal government role' in areas such as environment, air quality, public lands and rivers."
Now that the wheels are set in motion for hundreds of state legislators to convene for the stated purpose of correcting the federal "imbalance," which cause will Leavitt embrace? Will he champion an increase or a decrease in federal powers? Please bear in mind that all federal powers are enumerated in the Constitution: Congress has 26 powers, the President has six, and the Supreme Court has only three.
So if the Conference takes powers from Washington, which of the enumerated (constitutional) powers will it take? Will the states take power over interstate commerce, the postal service, or the roads that connect the postal system? Will they take from Congress the power to coin money and regulate its value? Will the states deprive the federal government of the power to borrow money or to collect taxes? Is it likely that the states will take over the power to declare war and to raise and support armies? Will the states conduct foreign affairs, take command of the military forces, or assume the veto powers of the President?
These are vital questions, because -- beyond these areas -- the federal government has precious few powers. If the Conference is intent on making longterm structural change in the state-federal relationship, then it must either reduce or increase federal powers.
Although Governor Leavitt offers only vague ideas on "restoring balance" and the kind of changes he envisions for the Constitution, it is not difficult to understand the kind of structural changes advocated by the Council of State Governments. In 1989, for example, it endorsed amending the Tenth Amendment as follows: "Whether a power is one reserved to the states or to the people shall be decided by the Courts."
This incredible proposal, the transfer of state power to the federal court system, should sound an alarm to any legislator contemplating a Conference of the States hosted by the Council of State Governments or by anyone else at this perilous time in our history.
Judging by the motivation of various state leaders, the Conference organizers really don't want to assume any of the proper functions of the federal system. Logically then, they must want to formalize the unauthorized powers -- that is, they must want to certify, the unconstitutional powers of government, both state and federal. They need a convention to do that. They need Resolutions of Participation and state-certified delegates to do that. They need the powers (pretended or otherwise) of a sovereign people to do that.
On the other hand, if the true goal of the organizers is to strip the federal government of its unauthorized powers, then a convention-empowered Conference of the States is not necessary. Accordingly, the resolutions being passed in the states have one main purpose and one only: to amend the Constitution to legalize that which is now unconstitutional; to usurp the undelegated powers of the people and delegate them to government.
The real motivation behind the Conference of the States is the very opposite of the avowed purpose, otherwise no high powered convocation would be needed. The states could announce their assertion of the Tenth Amendment in a telephone conference call, and divest themselves of federal usurpations by engaging only in those state-federal activities for which there is constitutional authority. The states, whether they meet or not, already possess the power to cast aside the unconstitutional shackles of the federal government. All the states need do to escape federal oppression is to send the federal checks back to Washington with the following explanation:
We respectfully return checks paid out of the federal treasury for activities that the federal government has no constitutional authority to engage in or to impose upon the states as set forth in the Tenth Amendment of the Constitution of the United States.
Delegates from many states are signing on with the Conference because the federal government has mandated programs without providing the funding. Their intentions are quite clear: They want amendments that will force Uncle Sam to pay for their programs relating to welfare, the environment, health care, highways, land management, public school subsidies, poverty programs, housing, senior citizens, downtown parking, etc. Other than that, of course, they want the federal government to leave the states alone. Never mind that the mandates themselves should be eliminated.
If held, the Conference would likely adopt amendments that would make legal that which is now unconstitutional. Many states would probably agree to increase the power of the federal government by insisting that the federal government fund the programs it mandates.
Governor Mike Leavitt obviously realizes he made a tactical error in openly calling for a constitutional convention last year. But his ostensible retreat from that unpopular proposal, his mollification of those governors who want federal money for their own welfare-state programs, and his "ideological migration" in support of a greater role for the federal government, exemplify the consummate politician.
But these are not the Governor's first "migrations." In 1993 and 1994 he was one of eight state executives who participated in the National Education Goals Panel which helped compose the infamous Goals 2000. This is the program which has radically accelerated the unconstitutional federalization of American education. Was the governor ignorant of his role in violation of the Tenth Amendment when he handed our children over to the feds? Is he really the anguished tribune of the Tenth Amendment, or is he instead a political opportunist, duly flattered and urged on by the intergovernmental crowd that has long sought radical changes in our form of government? The Utah governor has found a warm and willing reception among those who, since the 1960s, have worked to abolish the states and to establish in their place a federally managed regional government.
Leavitt exults that public sentiment is growing for the big summit at Philadelphia, but we disagree. On the contrary, media sentiment is growing. Or perhaps better stated, the managers of mass media see a perfect forum of pigeons preparing the way for their agenda. Editors and writers who have spent their lives scoffing at the Constitution are playing this game with all they can muster. The pages of our liberal papers are brim with flag-waving commentary on the "rebirth of America," and the "new role" of the states as masters of the federal monster. Cartoonists are outdoing themselves with the big foot of Uncle Sam shown as being thwarted by a sword-swinging little state. But the question persists: Why have the champions of big government suddenly discovered the Tenth Amendment?
We offer this answer: Because the call for the convention-empowered Conference conveniently sidesteps Article V, and the only final judge of the Conference's actions will be the people themselves. If the American people can be carried away in a false euphoria over this enormous fraud, they will ratify amendments that will tear apart the very fabric of republican government.
For the most part, Americans do not comprehend the constitutional role of their government or their responsibilities regarding it. Polls taken in recent years indicate an appalling ignorance of our system among the great majority of Americans. According to a national survey sponsored by the Hearst Corporation in 1987 (the bicentennial year of the U.S. Constitution), 45 percent of the respondents mistakenly believed that the Marxist principle, "From each according to his ability, to each according to his need," is found in the U.S. Constitution, 49 percent mistakenly believed that the President can "suspend the Constitution in time of war or national emergency," and 75 percent mistakenly believed that the Constitution guarantees "a free public education through high school."
The Conference of the States is most emphatically not a proposal of the people; it is a highly sophisticated, well-financed production that is being sold to state officials on a false premise and a deceitful promise.
Our immediate concern centers on the Resolutions of Participation being rushed through the statehouses of America. Every effort must be made to block them. Our nation's best informed citizens need to voice their opposition loudly and clearly. Governors and legislators who understand the Constitution and know it is not flawed must be willing to speak out in opposition to this elaborate plan to alter it.. We must not permit the calling of a state-authorized Conference imbued with federal convention powers at this point in our history.
© Copyright 1994-2000 American Opinion Publishing Incorporated
Vol. 11, No. 12
June 12, 1995
Table of Contents More on Constitutional Convention
Victories in the Con-Con Fight
by Robert W. Lee
On May 19, 1994, Utah Governor Mike Leavitt publicly unveiled his controversial proposal to convene a Conference of the States for the purpose of promoting "fundamental, structural change" to restore a proper balance between the federal government and the states. Two days earlier, in a memorandum addressed to interested parties, Leavitt and his deputy for policy, LaVarr Webb, claimed that the Conference of the States process would be "powerful" because it "relies upon precedents established by the Founding Fathers at the time of our nation's birth."
Describing our current national government as "outdated and old-fashioned," they asserted that "the problem we confront today regarding balance in the federal system is similar to what the Founding Fathers of this country faced more than 200 years ago with regard to the Articles of Confederation." The duo declared that it is "vitally important to see how the Founding Fathers solved the problems of the weak Confederation," since some of what occurred then "can help guide us today in restoring balance in the federal system."
History reveals that the Founders called a meeting of the states, which became the constitutional convention, which, though convened for the purpose of revising the Articles of Confederation, scrapped the Articles in favor of an entirely new document.
Less Than a Con-Con?
In their May 17th memo, Leavitt and Webb expressed the hope that a process "less disruptive than calling a constitutional convention" can be achieved, but held out the possibility that if "Congress refused to consider or pass the amendments" that emerge from a Conference of the States, "the states would have the option themselves of calling a constitutional convention to consider the amendments."
The governor's proposal drew prompt criticism from conservatives concerned about its potential for instigating a constitutional convention. Leavitt "solved" the problem with a semantic adjustment, dropping all references to a con-con while keeping the original blueprint intact. A revised version of the plan, carrying his name alone, was printed in July 1994 by Utah's two largest daily newspapers. The revision dropped the reference to "calling a constitutional convention to consider the amendments," and asserted instead that "the states would have the final option of taking constitutional action themselves." In addition, the reference to reliance "upon precedents established by the Founding Fathers at our nation's birth" became reliance "upon principles established at the time of our nation's birth...." (Emphasis added.) The switch from "precedents" to "principles" was viewed by some as an attempt to divert attention from the only precedent for a Conference of the States, which resulted in the only constitutional convention held to date in our country's history.
The potential for a con-con was still there, to be sure. It was merely camouflaged in a way that misled many to believe that it had been abandoned. By January of this year, the Conference of the States had been endorsed by most governors, as well as by such prestigious organizations as the National Governors Association, the Council of State Governments, the Advisory Council on Intergovernmental Relations, and the National Conference of State Legislatures. Quick approval by at least a simple majority of states (26 of the 50) required to convene the Conference appeared to be a sure thing, and talk within pro-Conference circles shifted from whether the conference would be held to what its outcome would be.
The first step after a majority of states signed on was to be an organizing session in July, followed by the Conference itself in late October during which concrete proposals (including constitutional amendments) would be approved.
First to pass a "Resolution of Participation," on January 16, 1995, was Governor Leavitt's own state of Utah. To assure that he would have the honor of being first to sign the measure, the legislature passed it on the first day of the session (January 16th) without hearings or debate. The vote was 75 to 0 in the House and 27 to I in the Senate. Two days later, Arkansas followed suit, also without hearings. On January 20th, Virginia gave its blessing (without hearings), as did Delaware (without hearings) on January 26th and Kentucky (without hearings) the next day. On February 2nd, resolutions were passed with similar haste and lack of scrutiny in Idaho, Missouri, and Iowa. Ohio, Arizona, Wyoming, and South Dakota soon came aboard, and by mid-February the tally stood at 12 to 0 in favor of a Conference of the States. The juggernaut was rolling, and did indeed appear to be unstoppable.
But then the well-oiled Conference machine ran into a brick wall. Whereas early votes approving Resolutions of Participation had been taken in an informational vacuum, a grassroots opposition movement led by the John Birch Society and its nationwide network of educational activists began to materialize. The Birch Society had first drawn its members' attention to the threat posed by the Conference of the States in its January Bulletin, where Don Fotheringham, the Society's point man on the issue, warned that the Leavitt plan was "potentially more dangerous than legitimate calls for a con-con. The governor, it seems, has concocted a whole new strategy for making radical changes to our form of government -- a strategy that conflicts with the amendment procedures provided by Article V in the U.S. Constitution." While acknowledging that the current federal-state balance "tilts to the far left in favor of federal power" and "is in dire need of correction," Fotheringham stressed that "no legislative or structural alterations can properly be obtained by any joint activity of state executives."
To date, the most useful educational tool exposing flaws in the Conference of the States has been Fotheringham's article, "Con-Con Call," which appeared in the February 6th issue of THE NEW AMERICAN.
Once that article began to circulate widely, demands for legislative hearings increased and many lawmakers were made aware of the ominous implications of the proposed Conference for the first time.
The Grassroots Grow
Serious grassroots opposition to the Conference of the States initially surfaced in Colorado. The Senate approved the resolution in mid-February, but by a surprisingly close vote of 21 to 14. The measure had been expected to pass with minimal opposition. Spurred by Birch Society activists and other concerned citizens, the House Judiciary Committee scheduled hearings.
On February 16th, the John Birch Society's Don Fotheringham testified against the Conference. Fotheringham recollects that during his testimony he told the committee that our country's Founders "understood their sovereignty. They exercised it in liberating themselves from England, in issuing the Declaration of Independence, in establishing the Articles of Confederation, and in ordaining the U.S. Constitution. They understood the power that resides in a free people, the power to create a government, and the power to disband one." Fotheringham testified that Resolutions of Participation in the Conference "would consolidate those same powers, no matter what the meeting may be called." In passing such a resolution, he advised the lawmakers, "You establish a delegation that is no longer accountable to the legislature of Colorado. The process of appointing delegates to meet with a majority of the other states to conduct federal business releases them from all accountability to this body. That is because, in a federal setting, such delegates are accountable only to the people. That is the legal, the peaceful, process by which the revolutionary force of a sovereign people is consolidated."
Commenting on attempts to add mollifying amendments to the resolution, supposedly to make it con-con safe, Fotheringham described such efforts as worthless, since "no amendment could be written that would have more power than the forces consolidated by this process. Delegates of the people are superior to Article V. They are superior to the Constitution. They are the creators of constitutions, presidents, courts, and congresses."*
* In a number of states, one or the other (or both) of two amendments have been appended to the resolution in the attempt to appease critics. They read: "Adoption of the Resolution does not constitute an application by the Legislature of [State] for the calling of a federal Constitutional Convention within the meaning of Article V of the United States Constitution"; and, "The Conference of the States may not be convened as a federal Constitutional Convention under Article V of the United States Constitution."
At the conclusion of the day's testimony, Senate Majority Leader Tim Foster, who had spoken in favor of the resolution, urged the committee to postpone a vote until a majority of other states had passed their resolutions. That way, Colorado could avoid defeating the measure and thereby slowing momentum for the Conference. No vote was taken, and the resolution died when the legislature adjourned for the year on May 8th.
On April 2, 1995, the Salt Lake Tribune reported that Governor Leavitt's policy director, LaVarr Webb, had "traveled to Sacramento in March to help guide California's formal 'Resolution of Participation' to passage. There, in a legislative committee room, Webb stared down dozens of angry conservatives worried about undermining the Constitution. The California lawmakers killed the resolution" by a vote of four to one. Tribune reporter Laurie Sullivan quoted Governor Leavitt as saying: "They had 80-some-odd people turn out to the hearing. They were booing and demonstrating. LaVarr was basically the only [supporter] there."
According to Sullivan, "In a span of just weeks, the John Birch Society has heaved the conference locomotive offtrack." For his part, Webb told a reporter for Salt Lake City's Deseret News that "there is a lot of opposition from the real extreme right-wing wackos," whom he described as "irrational" and unwilling to "listen to reason."
As we write, Resolutions of Participation have passed both houses of legislatures in 14 states, but have been scuttled in 20 others, including:
Representative Dean Mock was instrumental in keeping his colleagues up to date regarding the ominous implications of the Conference of the States. Two slightly differing resolutions languished with little support in either the House or Senate. They died when the legislature adjourned for the year on April 30th.
Don Fotheringham testified against the Conference on March 29th, but the state's House Government Affairs Committee approved the resolution that day by a narrow six to five vote. On April 18th, however, the full House voted down the resolution by a margin of 57 to 27. Babs Wilson, a parish chairwoman of the Republican Party, played a key role in generating opposition to the resolution.
After identical Conference resolutions were introduced in the Senate and House, local John Birch Society members Ben and Betsy Boyce arranged for Don Fotheringham to testify during hearings held in the Senate on February 28th and in the House the next day. Summarizing his "Con-Con Call" article from THE NEW AMERICAN, Fotheringham urged the Maryland lawmakers to read the article and carefully consider what a Conference of the States would actually entail. When he indicated to committee Chairman (and Senate Majority Leader) Clarence Blount that he was nearing the end of his testimony, the chairman asked him to instead "please go on," which he did. No vote was taken that day.
During the next day's hearings before the House Commerce and Government Matters Committee, Colorado State Senator Duke made a strong case against the resolution, explaining the uncertainty of the ratification process even were the Conference to comply with Article V and submit its action plan (States' Petition) to the states.
In testimony Fotheringham cited Utah's experience during the debate over repeal of prohibition. Utah was a "dry" state, due in large part to the influence of its heavily Mormon population, and all members of the legislature had agreed to vote against the 21st Amendment. When Congress and the liquor lobby realized that the legislature of Utah and many other states had no intention of ratifying the 21st Amendment, Congress exercised its Article V option to circumvent the legislatures by authorizing state ratifying conventions instead. Congress and special interests then influenced the delegate selection process to assure that even "dry" states would pass the anti-prohibition amendment. It was by that strategy that Utah, ironically, became the 36th and decisive state to legalize the sale of liquor, despite overwhelming opposition from the state legislature.
Maryland's Senate committee opted to postpone a vote on the Conference matter. But on March 13th, the House committee rejected the resolution by a lop-sided tally of 16 to 4, thereby laying it to rest for the year.
Montana. Hearings were held in the Montana House on March 14th. Again, Don Fotheringham was there, as were Montana Governor Marc Racico and Governor Leavitt. It was the first time that Fotheringham and Leavitt had faced each other during a hearing. The governors were allowed to speak both first and last. In between, Fotheringham focused on the enormous power that could be wielded by the Conference due to the Resolutions of Participation process. He explained why the action plan produced by the Conference would not necessarily come back to the state legislatures for ratification, and made clear that the John Birch Society was not accusing Conference sponsors of attempting to hold an Article V convention per se, but rather of consolidating the forces that would amount to such a convention.
As Fotheringham has pointed out on other occasions, delegates to the Conference of the States would already have the con-con power, so there would be no need to announce to the world that it was a con-con. If and when 26 legislature-approved Resolutions of Participation are secured, the delegates to the Conference "can do whatever they please, whether they call it a constitutional convention or not." The resolutions, Fotheringham stresses, are the problem. "They energize the concept. When you meet in a federal setting with other states to do federal business, you are a con-con whether you call it one or not."
The hearing was thorough, both sides were given ample opportunity to make their case, and the event was extensively covered by both the print and electronic media. The House committee opted not to vote that day, but later rejected the resolution (March 14th) by a vote of six to five.
New Mexico. On March 7th, Fotheringham arrived at the state capitol in Santa Fe to give testimony at hearings which, according to the day's printed agenda, were to be held on the House side. It soon became apparent that a proverbial "fast one" was being attempted, since the House hearings were merely for the purpose of appropriating expense money for Conference delegates. Some sleuthing by Fotheringham and John Birch Society members Lee Gonzales and Gary Krieger eventually determined that the Conference, under another name, was being scrutinized by the Senate Rules Committee. The three arrived at the hearing room as Senate Minority Whip Timothy Jennings was about to call for a vote. Jennings mistakenly assumed that Fotheringham was representing Mike Leavitt, and told him, "Governor Leavitt offered to come here today, but I told him I didn't think it would be necessary and that we had everything all worked out here." After allowing brief statements by Fotheringham, Gonzales, and Krieger, the committee passed the resolution unanimously. It was subsequently approved by the full Senate and sent to the House Judiciary Committee.
The bill was placed on the House calendar for March 15th. By law, the legislature would adjourn by noon on March 18th. No hearings were held on the 15th, nor at any other time. Over the next four days, however, a number of key legislators availed themselves of the opportunity to study the issue more thoroghly. At the last moment, only three minutes prior to adjournment, the House Speaker called up the Conference resolution for a vote. He claimed that there was no longer a con-con problem, since the measure had been amended to preclude one. Thanks to some last-minute floor work by State Representative Lorenzo Larranaga, however, it quickly became apparent as the voting lights flashed that a major upset was in the making. The resolution went down to defeat, 42 to 21.
Other states in which the Resolution of Participation has either been voted down, or the legislature has adjourned without passing it, include Florida, Georgia, Hawaii, Kansas, Minnesota, Mississippi, Oklahoma, Oregon, Pennsylvania, Rhode Island, Vermont, and West Virginia.
The Conference of the States will not be held in 1995 as planned. Governor Leavitt and other spokesmen admit that burgeoning grassroots opposition has forced them to cancel the July organizing meeting and to postpone the confab itself that was originally scheduled for October 22nd-25th in Philadelphia.
On April 21st, the Conference of the States steering committee, chaired by Governor Leavitt, met in Florida to figure out how to reverse the misfortune that has befallen the Conference cause. Earlier, Leavitt had indicated that he might be willing to forego the Resolutions of Participation, which would solve the problem, but the steering committee (with his support) not only decided to keep the Resolutions as part of the process, but increase the effort to achieve passage by a majority of state legislatures next year. Leavitt himself questioned whether or not it would be possible to attract governors and other state leaders to the Conference if the Resolutions were abandoned, since it would be perceived as a defeat, and there would be a risk of losing top-level delegations because they would have lost a sense of urgency.
The steering committee also decided to launch a massive effort to establish a fund-raising and lobbying entity to help spread the pro-Conference message to state lawmakers prior to legislative action next year. According to a March 25th report by the Salt Lake Tribune's Laurie Sullivan, the "American Legislative Exchange Council [ALEC] and the State Legislative Leaders Foundation will join the Council of State Governments, the National Governors Association, and the National Conference of State Legislators as official conference conveners." ALEC has for many years advocated a constitutional convention, if necessary, to achieve approval of a balanced budget amendment. The Washington-based Heritage Foundation, which periodically lends its aura of conservatism to questionable causes (it backed GATT and NAFTA, and is presently urging that NATO be expanded to include "former" communist countries that the U.S. would be obligated to defend), is, according to Governor Leavitt, one of the entities "drafting scholarly position papers stating the conference could not, would not become a constitutional convention."
As noted earlier, the Conference resolution has passed in 14 states, but has been rejected by vote or inaction in 20. As we write, the count since mid-February stands at two for and 20 against the Resolutions of Participation. It is an impressive turn-around, but is also merely the first skirmish in what could prove to be a long, drawn-out conflict. Those who would defend the Constitution by opposing the Conference must guard against complacency, and redouble their efforts in coming months, lest they risk the fate of the hare that raced the tortoise in Aesop's instructive fable.
Plans are presently underway for a "federalism summit" this autumn which, Conference promoters hope, will attract the support of at least 26 states. If that magic number is reached, Governor Leavitt has said that the "summit" will be transformed into a "convening meeting" at which governors and legislators will make plans for a future Conference of the States. Otherwise, the event will simply proceed as a "summit," and may include not only governors and legislative leaders, but "perhaps even mayors, city councilmen, members of the courts -- both state and national ...." It will, Leavitt predicts, "be an important watershed event in and of itself..." As for the Conference of the States, he speculates that "it will happen, and it will happen sometime, but it doesn't have to happen immediately."
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Opening Statement of CHAIRMAN CHARLES T. CANADY
Constitution Subcommittee Hearing on H.J. Res. 84:
"Proposing an Amendment to the Constitution of the United States to provide a procedure by which the States may propose constitutional amendments"
March 25, 1998
2237 Rayburn House Office Building 10:00 a.m.
Good morning. In a letter to a friend, Thomas Jefferson once wrote:
I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered, and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.
At the Constitutional Convention in 1787, there was significant debate over the procedure for amending the Constitution. Article V of the United States Constitution provides that amendments to the Constitution can be proposed in two ways, by Congress or by constitutional convention. After an amendment is proposed by either method, it must be ratified by the state legislatures or state conventions in three-fourths of the states (currently 38) to become part of the Constitution.
Under the first method, Congress can propose amendments to the Constitution by a vote of two-thirds in both the Senate and the House. This is the method of proposing constitutional amendments that has in fact been used. Since the First Congress through the present day, a total of 10,980 proposals have been introduced to amend the Constitution. Thirty-three of these were proposed by Congress to the states, and 27 have been ratified.
The second method of proposing amendments is triggered upon the applications or petitions of two-thirds of the state legislatures. Under this method, after Congress receives the applications, Article V provides that Congress shall call a constitutional convention to propose constitutional amendments.
The convention method has never been formally used, although there have been some efforts that have come close to the requisite two-thirds of the states. For example, 32 of the necessary 34 state legislatures have passed resolutions petitioning Congress to call a convention to propose an amendment requiring a balanced federal budget. History shows that the Framers likely intended the convention process to be a viable method of amending the Constitution. In The Federalist No. 43, James Madison wrote of Article V's amendment process that it "equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other."
However, the process by which States may apply for a constitutional convention under Article V is unclear, and there is disagreement over what shape such a convention would take if it were called. As a result of this uncertainty, many commentators have warned of the dangers of a "runaway convention" that would exceed its mandate and not necessarily reflect the true spirit of the Constitution and the wishes of the people. The specter of a "runaway convention" seems to have been accepted by many as a convincing political argument.
Some scholars counter with a different perspective, which is that the mere threat of a convention can prod the federal government into action on the specific issue or amendment that initially drove the effort for a convention. Even though no convention has been called, these commentators reason, the existence of the option can have a "prodding" effect.
House Joint Resolution 84 proposes an amendment to the Constitution to provide a procedure by which the states may propose constitutional amendments. Also called the "States' Initiative," the resolution is sponsored by Rep. Tom Bliley (R-Va.), and has eight House cosponsors. I wish to thank Chairman Bliley for his leadership in introducing this measure and I look forward to continuing the important discussion in Congress over the balance of powers within our constitutional system.
Statement of The Honorable Tom Bliley, M.C.
Before the House Judiciary Subcommittee on the Constitution
on H.J.Res. 84
Wednesday, March 25, 1998
I want to thank you for holding this hearing today on H.J Res. 84. This legislation I have sponsored with Congressman Virgil Goode of Rocky Mount, Virginia and 7 others symbolizes what we call in Virginia the States' Initiative.
When the Founding Fathers wrote the Constitution in Philadelphia in 1787, they drew upon life's experiences and history to perfect the ideas and ideals the Constitution embraces. After they finished writing the Constitution, the Founding Fathers were wise enough to know they could not foresee the future. As a result, Article V provides for a mechanism to amend the Constitution.
We all know the Constitution is not perfect, even after 27 amendments. The Constitution has, although, protected the individual liberties all Americans have enjoyed for over two hundred years.
As the proud holder of the seat first held by James Madison, my first objective is to never do any harm to the Constitution. However, the Founding Fathers acknowledged a need to amend the Constitution. The States' Initiative is a direct descendant of Madison's writings.
In Federalist Paper 43, James Madison wrote, "useful alterations will be suggested by experience. The Constitution moreover equally enables the general and the state governments to originate the amendment of errors as they may be pointed out by the experience on one side or on the other".
At present, Article V provides for two ways to amend the Constitution.
The first involves the presentation of an amendment by Congress to the states for ratification.
The second is by Constitutional Convention, convened at the request of the state legislatures.
Even with both methods available, to date, all amendments to the Constitution have been enacted following passage by the Congress and ratification by three-fourths of the states.
Some have asserted that the second method has not been as effective as intended by the Framers.
On the Op/Ed pages of the Richmond Times-Dispatch, my local newspaper, Edward Grimsley wrote about the dilemma which would be remedied by the States' Initiative. Edward Grimsley wrote, "In the hands of the people the amending process could produce some truly wonderful results."
By allowing the States an effective mechanism to amend the Constitution, more power can be returned to the people. After all, "We the People" are the first 3 words of the Constitution.
Why is the States' Initiative necessary? Persuasive arguments have been made that a Constitutional Convention might alter the Constitution more expansively than intended by proponents of a specific proposed amendment. This is known as the fear of a "run-away" convention.
The States Iniative implements a more effective method by which states could take the initiative in the process by which the Constitution is amended. This bill allows the states to initiate the amending process that is devoid of the perils of a "run-away" Constitutional Convention.
Another problem with a Constitutional Convention is that even if it isn't a "run-away" convention (that is, even if the Constitutional Convention met to adopt only one amendment), the mere fact that the states met could have a far-reaching jurisprudential impact. Would the Supreme Court view a Constitutional Convention which kept the pre-existing Constitution as an implicit ratification of prior Supreme Court rulings? This would cause those on the left (who oppose certain Rehnquist Court rulings) and those on the right (who oppose certain Warren Court rulings) a considerable amount of trouble.
To restore the Framers' design, that is a design where the states could initiate the amendment process, our proposal would allow a Constitutional amendment to be presented to Congress after two-thirds of the states indicated approval of an identical amendment via their state legislatures.
If two-thirds of each house of Congress does not agree to disapprove of the proposed amendment, it would be submitted to the states for ratification.
Upon ratification by three-fourths of the states legislatures, the amendment would become part of the Constitution.
I urge your support for this common sense legislation that returns as an option, the power to amend the Constitution to the states, as the Framers intended. While I am not beholden to the exact ratios specified in my amendment, I believe they stand as a good starting point for a discussion of providing states with the power that the Framers envisioned.
The States Initiative is supported by Rep. Nathan Deal (R-GA), Rep. Floyd Spence (R-SC), Rep. Bob Stump (R-AZ), Rep. Jim Kolbe (R-AZ), Rep. Paul Gillmor (R-OH), Rep. Merrill Cook (R-UT), and Rep. John Shadegg (R-AZ). It also is supported by Governor Mike Leavitt of Utah (R), Governor Don Sundquist of Tennessee (R), Governor George Voinovich of Ohio (R), and George Allen, former Governor of Virginia (R) who will testify today in support of the States' Initiative.
H.J. Res. 84 also has the support of the Arizona State Senate President Brenda Burns (R), Speaker of the Ohio House of Representatives Jo Ann Davidson (R) and Ohio State Senate President Richard Finan (R). The Western Governors Association also has endorsed the States' Initiative.
I urge my fellow colleagues to support this common sense legislation that returns as an option, the power to amend the Constitution to the States, as the Founding Fathers intended.
TESTIMONY OF THE HONORABLE GEORGE ALLEN
BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION
OF THE COMMITTEE ON THE JUDICIARY
UNITED STATES HOUSE OF REPRESENTATIVES
ON FEDERALISM AND THE STATES' INITIATIVE
WEDNESDAY, MARCH 25, 1998
Thank you, Mr. Chairman.
I appreciate the opportunity to be here today. I have fond memories of this committee, on which I had the pleasure of serving on when I was in the House.
And it is indeed a privilege to join my good friend, Chairman Tom Bliley, an outstanding leader in the fight for a balanced federal system. He is to be commended for introducing H.J.Res. 84, which embodies the concept that we in Virginia have been calling the States' Initiative. This constitutional amendment is a necessary structural change if we are to reinvigorate our federalist system and restore the balance between the federal government and the States.
As a former Governor of Virginia, I approach this subject of federal-state relations with a perspective very similar to that of two of my early and esteemed predecessors -- Patrick Henry and Thomas Jefferson. Like them -- and like many Governors who have served since their time, not only in Virginia but around the
country -- I have a healthy distrust of centralized power, especially power centralized in Washington.
Our country was founded on notions of individualistic liberty and limited government, and with the expectation that people would be free to chart their own course and control their own destiny through self-government based in their local communities and their states.
The Founders pledged their lives, fortunes and sacred honor to achieve freedom and independence from an oppressive monarchy in England. With that hard-fought victory won, they were not about to surrender their liberties to an all-powerful central government -- this one, on the north banks of the Potomac.
Instead, they took pains to guard against centralized power through an elaborate constitutional system of checks and balances. For the federal government, power was divided among three branches of government and the legislative powers further split between the House and Senate.
At least as important, if not more so, was the shared sovereignty between the States and the federal government. As Patrick Henry concluded, "If there be a real check intended to be left on Congress, it must be left in the State Governments."
The power of the federal government was to be limited and enumerated, with all remaining powers reserved by the 10th Amendment to the States and to the people. The onus was on the States to jealously guard their freedoms.
Almost from the beginning of our country's history, however, the federal government began to encroach upon the authority and freedoms intended for the States. As early as 1825, Thomas Jefferson observed:
"I see, as you do, and with the deepest affliction, the rapid strides with which the federal branch of our government is advancing towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic, and that, too, by constructions which, if legitimate, leave no limits to their power. Take together the decisions of the Federal Court, the doctrines of the President, and the misconstructions of the constitutional compact acted on by the legislature of the federal branch, and it is but too evident that the three ruling branches of that department are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic."
Today, there is virtually no area of public responsibility or private activity in which federal bureaucrats do not assert the power to override the will of the people in the States, through federal mandates, edicts and rulings.
The Framers intended the States to be jealous guardians of their responsibilities and power, but, historically, the States have faced a dilemma in resisting the growth of federal power at their expense. On the one hand, questions regarding the scope of the federal government's jurisdiction are resolved by federal courts, which generally have favored more expansive interpretations of federal power. On the other hand, the States' recourse to the constitutional amendment process has been impeded by Congress' virtual monopoly over the initiation of constitutional amendments.
Use of the Article V "convention" method of amendment, intended by our Founders to allow direct State action, has never been used because of fear that a constitutional convention called by the States would become a "runaway" assemblage that would seek to rewrite our entire national charter.
So the power has gravitated almost inexorably to Washington, and we have paid a heavy price. While there are winners and losers from issue to issue, the truth is that all of our citizens enjoy less freedom and less opportunity for self-government as a result. Instead of decisions being made in our States and our local communities -- where citizens can make their voices and views heard -- more and more of the decisions that affect our lives are being made by unelected and unaccountable bureaucrats here in Washington, D.C.
This condition breeds a sense of powerlessness and unconnected distance among our citizens with their government. That feeling of powerlessness in turn breeds apathy and cynicism about the political process. And that apathy and cynicism about the political process can shake the very foundations of our free society and the rule of law on which it is based. They may threaten a society in which, for the first time in the long history of mankind, people were to be regarded as the masters, and government as the servants -- not the other way around.
The most insightful framers of the Constitution feared this centralization of power and the resulting loss of freedom and self-determination by the American people. In vain, they fashioned the Tenth amendment as a "parchment barrier," to borrow James Madison's term. But Madison foresaw what we now know from experience: that the Tenth Amendment alone could not restrain federal power. The people in the States must have the means to defend their own ideals and prerogatives. A new, workable avenue for the States and the people to change their Constitution must be crafted. And since fears of a "runaway" constitutional convention have rendered impractical the State's existing constitutional means of self-defense.
That was the conclusion reached in Virginia by the Governor's Council on Self-Determination and Federalism, which I established by Executive Order in Virginia in 1994. I would like to submit for the record the report of the Subcommittee on Constitutional Amendments. This distinguished panel included, among others, State Senator (now Congressman) Virgil Goode, former Congressman Caldwell Butler, Judge Robert Bork, and Professor Nelson Lund, from whom you will hear shortly.
It was the conclusion reached by the five leading State government organizations at the bipartisan Federalism Summit in Cincinnati in 1995.
It was the conclusion reached by 30 Republican Governors who convened in historic Williamsburg in 1994. At that eventful meeting, we adopted a statement known as the Williamsburg Resolve, making clear our determination to reclaim the States' prerogatives and to restore the constitutional checks and balances that stand guard in defense of our liberties.
Joined in Williamsburg by the newly elected leadership of the House and Senate, we charted a new course in relations between the federal and State governments. Certainly, some of the results have been heartening.
Almost immediately, the 104th Congress adopted the Unfunded Mandates Reform Act. That legislation has produced a new awareness of and accountability for intergovernmental mandates.
The sweeping welfare reform legislation signed into law the following year marked a turning point, devolving unprecedented authority back to the States to design and run their own welfare systems.
WHO'S WHO IN THE COS PUSH
A tenth state has quietly endorsed a plan that could threaten the Constitution.
(Spotlight, March 13, 1995)By Trisha Katson
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