Will Proportionality for Voting Delegates Be The Rule At An Article V Convention?

In 2013 and 2014 we have seen a number of organizations champion the portion of Article V of the Constitution that provides for an Article V Convention to be called by Congress on the application of two thirds of the State legislatures for the purpose of proposing amendments to our Constitution. Organizations favoring such an Article V Convention, often called a ??????Constitutional Convention,?????? include the Article V Caucus made up of members of various state legislatures who have combined in an effort to champion the calling of an Article V Convention to propose amendments to the Constitution; Citizens For Self-Governance (CSG), an organization found online that has put for a ??????Convention of the States Project;?????? Move to Amend, a coalition of hundreds of left-leaning organizations desiring to see the Constitution amended; and the American Legislative Exchange Council (ALEC).

In addition a number of radio and television pundits have joined in that chorus including Mark Levin, Sean Hannity, Rush Limbaugh and Glenn Beck. Mark Levin even wrote a book- THE LIBERTY AMENDMENTS- that asserts that although he once opposed the calling of an Article V Convention, he now sees such a Convention as the solution to the need to reign in the out of control federal government. In the first chapter of his book he quoted Robert Natelson. Any researcher on this topic will find Robert Natelson????????s writings on the subject in the online archives of the Goldwater Institute or the Independence Institute in Denver, Colorado.

Across the fifty State legislatures there are a total of some 7,000 legislators. 2,000 of them belong to The American Legislative Exchange Council (ALEC). Retired professor Robert G. Natelson authored a handbook for ALEC on the subject of the bringing about of an Article V Convention for proposing amendments to the Constitution. Natelson????????s handbook is titled: ??????PROPOSING CONSTITUTIONAL AMENDMENTS BY A CONVENTION OF THE STATES A HANDBOOK FOR STATE LAWMAKERS.??????

We see Robert Natelson quoted by books, groups, pundits, and legislators alike in promoting an Article V Convention as the solution to be followed to reign in the outlaw federal government and its overspending and debt accumulation. The principle suggestion of constitutional revision, among many, is to hold the Convention to deliberate on language for a Balanced Budget Amendment (BBA), although Mark Levin????????s book alone suggests eleven amendments he believes should be considered at an Article V Convention.

Thursday, February 20, 2014, while visiting Utah????????s State Capitol during the legislative session, I picked up a printed copy of a resolution,, H.J.R.8, sponsored by Utah State Representative Kraig Powell, a Republican and a lawyer. House Joint Resolution Eight is titled: ??????JOINT RESOLUTION PROPOSING A BALANCED BUDGET AMENDMENT TO THE UNITED STATES CONSTITUTION.?????? The resolution is an application to the U.S. Congress to call an Article V Convention. In the body of the resolution one can see advice from Robert Natelson????????s Handbook reflected in some of the language of the resolution.

Lines 19 and 20 for example of HJR state: ??????[This resolution:] requests that this application be considered as covering the same subject matter as the presently outstanding balanced budget application from other states;??????

On page 14 of Natelson????????s Handbook we read a suggestion for forestalling an obstruction of calling the Convention by Congress by providing some wording in a State????????s application to the effect: ??????This application is to be considered as covering the same subject matter as presently- outstanding balanced budget applications from???????..??????

On page 15 of Robert Natelson????????s Handbook we read concerning the Article V Convention: ??????Delegates to American conventions generally have had power to???????.adopt their own rules, and this has been universally true of interstate conventions. These rules include the standards of debate,???????and other matters of internal procedure. Interstate conventions traditionally have determined issues according to a ???????one state/one vote,???????? although a convention is free to change the rule of suffrage.?????? So ??????one state/one vote?????? isn????????t a rule that cannot be changed by the Convention, but can that suffrage-rule also be changed by Congress when it creates its ??????call to Convention”?

Last week, the lawyer who John Birch Society Coordinator Jeff Hymas and I met with in Jackson Hole, Wyoming, Steve Duerr, who is the CSG project leader for Wyoming for calling an Article V “Convention of the States” is probably well-meaning, but like Michael Farris he is confident that precedent conventions (none of them Article V Conventions) guarantee that an Article V Convention will be established with the rule “one state/ one vote.”

Such could be the case if precedents are followed by Congress when it authors its “Call to Convention,” but there is no guarantee that such precedents will be followed since no such “one state, one vote” rule is specified in Article V. We can challenge Robert Natelson, Mark Levin, Mark Meckler, or Michael Farris to show us the clause in Article V that guarantees “one state, one vote” will be the guaranteed rule at an Article V Convention. It isn’t found in Article V. And we must then ask: Who calls the convention? The answer of course is the U.S. Congress, including both the U.S. House of Representatives, a proportional body, and the U.S. Senate a ??????one state/two votes?????? body.

The 435 members of the U.S. House of Representatives and the 100 U.S. Senators may see their empowerment under Article V differently than Mark Levin, Mark Meckler, Robert Natelson, or Michael Farris, especially the Congressmen who firmly believe in majority vote- democracy. Congressmen, presidents, media pundits often tell us that our federal government is a ??????Democracy,?????? which implies majority vote rule based on population proportionality if not direct democracy through direct popular vote. (Of course our Founders never mentioned democracy in the Constitution, they established a Republic under Constitutional law, but that doesn????????t mean the concept of democracy isn????????t widely accepted now in America).

So Congress may very well desire “proportionality” for each State in representation of voting delegates or commissioners at an Article V Convention! After all, proportionality is what is seen at the continuous amendments convention we call the U.S. House of Representatives, right?

Remember the U.S. House of Representatives and the U.S. Senate are a continuous amendments convention as either house can propose amendments to the Constitution at any time (Article V). If those amendment proposals are approved by two-thirds of both Houses of Congress, then the proposed amendments are submitted to the States???????? legislatures or the States???????? Amendment Ratification Conventions (depending on Congress???????? choice for the ratification method) for rejection or ratification. So we see an aspect of proportionality makes up half of the ongoing Congressional amendments convention that exists as the U.S. Congress.

Proportionality is what we see reflected in the Electoral College as well, right? So why wouldn’t the Congressional delegations from big-population states like California, Florida,Texas and New York seek proportional representation at an Article V Convention? Yes, California, New York, Texas and Florida could be very dominant forces at the Article V Conventions if it is called by Congress and if Congress specifies in its ??????Call to Convention?????? that there should be proportional representation of voting delegates from each state based on population as is reflected Congress and in the Electoral College.

How will Utah, Wyoming, Montana, South Dakota or other small population States fare if they get few votes at the Convention and California gets fifty-five votes and New York gets twenty-nine votes? What will Congress decide if they are forced to call a convention? Convention delegation representation will be their decision by their simple majority vote since Congress, not the States, calls the Convention, opinions to the contrary notwithstanding.

Consider this, if proportionality is the rule Congress decides upon for States to adhere to when sending delegations of voting delegates to an Article V Convention and if that proportionality is the same as is reflected in the Electoral Colleges or a total of State representation in both Houses of Congress, then California would have fifty-five voting delegates, Utah would have six voting delegates, Wyoming would have three voting delegates, New York would have twenty-nine votes, Florida would have twenty-nine votes. You can see the weight of power would be reflected in delegations from large population states who would dominate the Convention. And that????????s probably what Congressional delegations from those states would desire just as they are dominant forces in Congress.

Since Article V does not specify how many voting delegates or commissioners will be allowed from each state, proportionality is a possibility for representation and suffrage at the Article V Convention, isn????????t it? Is the calling of a convention wise for smaller population states based on that possibility?


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