Celebrating the Bill of Rights Day

Today is the 222nd anniversary of the adoption of the Bill of Rights. On this date in 1791, the Commonwealth of Virginia was the 12th State to ratify the ten amendments that were then incorporated into our Constitution.

 During the 1787 Constitutional Convention in Philadelphia , the framers were more concerned about how power would be distributed by the national government.  Some of the delegates were concerned that the Constitution did not spell out how the people would be protected from the government’s abuse of power.  So James Madison, the “father” of the Constitution and the author of the Federalist Papers, championed the inclusion of a Bill of Rights, that was modeled after an English Bill of Rights as well as similar Bill authored by Virginia George Mason.

The original resolution presented to Congress included twelve amendments which were not as sharply focused on individual rights.  One provision involved the number of delegates per the population.  The other seemingly stillborn amendment involved Congressional compensation:

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Although this amendment was not ratified as part of the Bill of Rights, this provision was ratified by 3/4ths of the states by Michigan in May, 1992.  Later it was discovered that the Commonwealth of Kentucky’s General Assembly had ratified it in its first month of statehood in 1792 but it had not been applied for 200 years.

As for the Bill of Rights:

The First Amendment says that “Congress shall make no law… abridging the freedom of speech.”

The Second Amendment says the people have the right “to keep and bear arms.”

The Third Amendment says soldiers may not be quartered in our homes without the consent of the owners.

The Fourth Amendment says the people have the right to be secure against unreasonable searches and seizures..

The Fifth Amendment says that private property shall not be taken “for public use without just compensation.”

The Sixth Amendment says that in criminal prosecutions, the person accused is guaranteed a right to trial by jury.

The Seventh Amendment guarantees the right to a jury trial in civil cases where the controversy “shall exceed twenty dollars.”

The Eighth Amendment prohibits cruel and unusual punishments.

The Ninth Amendment says that the enumeration in the Constitution of certain rights should not be construed to deny or disparage others “retained by the people.”

The Tenth Amendment says that the powers not delegated to the federal government are reserved to the states, or to the people.

These are not arcane relics of history.  Every day, Americans practice their freedom of speech and peaceful assembly.  Americans depend on access and the fairness of the judicial system. Our property rights can be challenged by eminent domain abuse.  And ultimately, citizens need to protect their right to bear arms–it’s not about hunting but the ultimate safeguard against the abuse of a tyrannical government.

Quelling Qualms Over a Constitutional Convention of States

On the eve of the Mount Vernon Assembly, where nearly a hundred State Legislators gathered to discuss the framework for an Article V Convention of States, Phyllis Schlafly’s Eagle Forum issued an Action Alert decrying the effort.

The 89 year old Phyllis Schlafly has been a respected Republican constitutional scholar who was instrumental in stopping the ratification of the Equal Rights Amendment in the 1970s.  Schlafly has expressed skepticism  about the concept of a constitutional convention since the 1980s for fear of a “runaway convention.”  So  it is no surprise that her  Eagle Forum Action Alert would effectively telegraph a message of “hell no” to efforts at the Mount Vernon Assembly. 

 But a closer examination of the Action Alert reveals some specious arguments against what the Eagle Forum derides as a “Con Con”.

While it is true that there is not a tried and true tradition on the Article V Convention of States Amendment process, the Eagle Forum Action Alert did not seem to apply standard legal analysis to Article V.  The section reads:

“The Congress . . . on the Application of the Legislatures of two thirds of the several States shall call a Convention for proposing Amendments . . .” [their emphasis in bold]

This leads the Eagle Forum to conclude that states only have the power to ask Congress for a convention and that the grant is discretionary.   This analysis under-plays the importance of the word “shall”, which means that if 2/3rds of the states make a similar request, Congress is mandated to call a convention. 

Sen. Sam Ervin (R-NC) by Ann Martin 

As the convention of states route to the Article V amendment process is uncharted territories, it is proper to be concerned about Congress seeking to take control of a convention.  The Eagle Forum alludes to efforts by Senator Sam Ervin (D-NC) and Representative Henry Hyde (R-IL 6th) to shape a prospective constitutional convention.  The problem is that neither the “Ervin bill” nor any Hyde bill ever was enacted.  While the 1971 “Federal Constitutional Convention Procedures Act passed the Senate 84-0 in 1971 and also passed in 1973, the House refused to enact it. Moreover, Rep. Hyde was a minority member so his bills never made it to the floor.  

From a legislative history perspective, it is interesting that the “Ervin” bill modeled a Federal Constitutional Convention as being like a plenipotentiate joint session of Congress.  Ervin’s bill gave each state two at-large  as well as a delegate per Congressional district with one vote a piece. So one can appreciate the worry that Congress would highjack a constitutional convention by essentially appointing itself and dictate whatever terms the majority in Congress wills. But these bills were stillborn, so such a corrupted process has not been figuratively chiseled into stone. 

It is dubious if the Framers of the Constitution would have established a secondary track for amending the Constitution if a Constitutional Convention would be like a super-empowered legislature.  Prior to the Constitutional Convention in 1787, the American colonies had a long history of Interstate Congresses.  This rich legislative history points to long established precedents of how a Convention of States ought to proceed.

In addition, fretting that States can only petition Congress for an Assembly ignores the will emanating from the State Legislatures who would call such an Article V Convention of States.   This is why the initial Mount Vernon Assembly session was so important, as it sought to establish ground rules for such a convention, and shared ideas for states to keep a convention under control.

IN State Sen. David Long (R-IN 16th, Ft. Wayne)

Indiana State Senator David Long (R-IN 16th, Fort Wayne) championed a Faithful Delegate law to accompany a call for an Article V convention of states.  This Faithful Delegate law precluded the prospective Convention of State participants from acting like free agents.  The Delegate would do the bidding of the State which they represented or their vote would be void, the delegate would be substituted and the maverick delegate would be subject to a felony.  Such is the cost of being a constitutional “free agent” with a Faithful Delegate law, unlike the slap on the wrist for Faithless Delegates in the Electoral College. 

While there may be several models for a Constitutional Convention of States, it need not be designed like a super-legislature needing a super-majority to approve amendments.  It could well be structured like a contingent election when the Electoral College deadlocks.  In the case of a contingent election, each state delegate casts one vote and the deciding tally must meet a required threshold.  Colonial Congresses also had the one vote per State precedent.  The Mount Vernon Assembly focused on framework for a Convention of States rather than pressing potential amendment issues to build the base in case it comes to ripeness.

Another needless concern of the Eagle Forum Action Alert echoes earlier concerns about a runaway convention threatening the Bill of Rights and basic liberties enshrined to the current Constitution.  Such worriers should be placated that a Convention proposing Amendments can only licitly do what it is labeled “proposing Amendments” In order for such a Convention to send Amendments to States for ratification, it requires 2/3rds approval.  That is a high threshold, whether is it measured by individual delegates or single vote state methodology.  Even if such an Amendment made it past that mark, it would still need to garner 3/4ths approval of states through their legislatures or a truly never tried means of state conventions. 

The Eagle Forum is of the mind set that conservatives need to win elections.  This is a sentiment upon which all conservatives would concur.  However, it is dubious if just winning elections is the entire answer to problems in our polity  when the Administrative State can supercede the will of the people expressed by their legislature (e.g. Cap and Trade), automously expand its authority (e.g. FCC) as well as other unchecked abuses by the Executive Branch and the Judiciary.

It seems that on this issue, the Eagle Forum focuses on federal politics. However, reform of the Federal Government will only come from outside of the Federal City.  Article V provides a Constitutional mechanism for reforming our polity from outside of the District of Calamity (sic).  

In addition, conservatives power also lies within the State Legislatures, which could muster up to 30 States petitioning an Article V convention of states, which would create pressure on Congress to do something lest a Constitutional Convention be called. That is why the Mount Vernon Assembly took time to discuss process before proceeding.  Calling for an Article V Convention with strict instructions for delegates along with an Amendment like the Madison Coalition’s Regulation Freedom Amendment which could stand alone would set the stage for starting to restore the constitutional balance between Federal and State Governments. 

Explaining the Long Shot-- Indiana State Rep David Long on Article V Convention Push

Indiana State Representative David Long (R-16th, Fort Wayne) is an articulate spokesman for the effort to call for an Article V  Convention of the States.



One of the important innovations to the Article V Convention of States drive is the Faithful Delegate law. This Faithful Delegate law mandates that delegates sent MUST represent the State Legislatures will, otherwise their vote will be void, the faithless delegate would be replaced and jailed with a felony charge.

This Faithful Delegate law is presumably one of many organizational issues that will be addressed during the December 7th 2013 Mount Vernon Assembly. 

In Anticipation of the Mount Vernon Assembly

Georgia State Representative Buzz Brockway (R-102nd, Lawrenceville) published a post on the Peach Pundit in anticipation of his participation at the Mount Vernon Assembly. Representative Brockway will be one of at least  eleven Georgia lawmakers expected to attend the gathering at George Washington’s estate to foster communications among the states and to discuss the possibility of a convention of states in 2014 that would be “solely focused on the task of writing the rules for an Article V Convention.” Per the organizing letter, only state legislators without their staff will be participating in the Mount Vernon Assembly.  

Representative Brockway insists that this should not be a right wing thing.  He recounted meeting  a Hawaiian State Senator at a recent National Council of State Legislators meeting where this self-professed progressive proclaimed: “[I]f we could get Washington to leave us alone, we be a lot better off.”  But a vitriolic progressive  post at the Daily Kos seemed aimed at discouraging Democrat participation and paints prospective constitutional conventions in purely partisan terms. 

Elected officials who will earnestly explore aspects of an Article V convention of states concede that there is a high threshold which must be met to change the Constitution. Moreover, the Framers designed a system which required overwhelming support for any Amendment in order to be enacted.

It will be interesting to learn what sort of framework will emerge from the Mount Vernon Assembly and whether any Democrats had the courage to consider using inchoate Constitutional procedures to make a more perfect Union. 

Exploring Contemporary Applications of Article V Amendment Process

David Barton moderated a conversation between North Dakota State Representative Kim Koppelman (R-13th, West Fargo) and Colorado State Senator Kevin Lundberg (R-15th, Loveland)  about using Article V in the U.S. Constitution to effectuate Constitutional Amendments via a convention of the states. 

A Regulation Freedom Amendment to Reign in Excesses of the Administrative State

A GUEST POST by Jeffrey Barrett

Jeffrey Barrett

The rise of the Administrative State over the last few decades is perhaps the greatest threat to America’s constitutional Republic.  The Administrative State describes a form of government which delegates massive discretionary lawmaking power to unelected bureaucrats in federal agencies who are then responsible for enforcing their own laws. Such a behemoth bureaucracy is also known as  “The Welfare State”, “The Entitlement State” or “Big Government”.  But by any moniker, it is at odds with a governmental structure of separation of powers, checks and balances along with voter input and oversight.  The Regulation Freedom Amendment is a means to tame the Administrative State and return it to constitutional principles.

The Administrative State arose from Congressional delegation of details of the laws which they passed with the result that the burden was unloaded onto a swarm of Executive Branch agencies that administer, regulate and even adjudicate frequently vague legislation.   By Congress handing wide discretionary authority to bureaucrats to create regulations, it effectively gives these agencies the power to create laws as these regulations have the same force of law as enacted legislation.  Political scientist Joseph Postell has described these bureaucratic leviathans as nothing less than a “fourth branch” of government.

A major problem with the Administrative State is a lack of accountability.  When elected representatives give unelected bureaucrats authority to make laws, voters have no control over the faceless, nameless Civil Service protected federal workers.

The Administrative State also deprives citizens of the vital constitutional protection of the Separation of Powers, as federal agencies enact the regulations which they then enforce and often adjudicate.

To illustrate the conundrum, consider an average citizen dealing with the IRS, a small farmer or landowner engaging with the EPA or a small businessmen dealing with OSHA.  Your imagination, or perhaps personal experience, should convey the true impact of such “arbitrary power”.

One might wonder what can be done to check the Administrative State. The Madison Coalition points out that Article V of the U.S. Constitution   gives  state legislatures the authority to bypass Congress and implement a new Constitutional amendment that will check the routine excesses of the federal bureaucracies. The Madison Coalition calls their proposal “The Regulation Freedom Amendment.”

The notion for the Regulation Freedom Amendment is that if 1/4th of the States (13 total) or 25% of either the House or the Senate questions a federal regulation, then Congress would be required to formally call on a vote on the matter.   Thus states can force Congress to take responsibility for any regulation which states find too expensive, onerous or inane and voters will have their federal representatives on the record.   If Congress chooses not to take a transparent (or potentially embarrassing) vote, then that particular regulation becomes null and void.

A Regulatory Freedom Amendment would nudge the political system away from the arbitrary governance of the Administrative State towards “responsible” representative government.  It would give States, who are frequently the victims of unfunded federal mandates from the Administrative State, to act as a constitutional countervailing check on power of the alleged “fourth branch” of government.  A Regulation Freedom Amendment would temper the arrogance of power that  prevails amongst bureaucrats at some federal agencies, as some who would see themselves as victims would now have a means of fighting back.

To put the Regulation Freedom Amendment in place, it would behoove concerned citizens to contact their State Legislators to push this Amendment as well as Faithful Delegate Laws (like the now law crafted by Indiana State Senator David Long (R-16th, Fort Wayne) ) to prevent worries  that there would be a runaway Constitutional Convention.   After passage of the Regulation Freedom Amendment, legislators would discover the power that states have to correct the imbalance of power between the federal and state sovereigns.

This is an abridged version of an article which originally appeared in The Washington Times and was republished with the permission of the author. 

h/t: Madison Coalition
     Washington Times
     Eric Allie