Friday, July 12, 2013

Convention first or Amendments first

I know that there are some that will see this that are Mark Levin fans, but please bear with me.

I went to Mark Levin's site and watched the video promoting his upcoming book, Liberty Amendments.  Obviously, since this book is not out yet, I don't know the contents, but based on the video, here is what I am assuming from it:

He would propose that we get the states together and decide to have a Convention of the States to Propose U.S. Constitutional Amendments.  Meaning that the states would get together first to apply to Congress as one application from the necessary number of states to trigger the Convention to debate and then vote on Amendments to be presented to the states for ratification.

As noted in the text here, only that line which is of particular interest:

Article V - U.S. Constitution -

"on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments,"

The Constitution indicates that the Legislatures could apply for a convention and that the purpose of this would be to propose amendments.  This particular way of getting amendments proposed, and then passed to the states, has never been used. Every amendment in the U.S. Constitution, to date, has been proposed by Congress and then sent to the states for ratification.  Though in regards to the Seventeenth Amendment, the direct election of Senators, many of the state legislatures adopted resolutions demanding that a convention be called in an effort to pressure the Senate to finally relent and approve and send to the states the proposal that became the Seventeenth Amendment. This was also the case with the Equal Rights Amendment that failed to be ratified.

In recent history, as with the Equal Rights Amendment, the state legislatures will pass a resolution in regards to a specific topic with their application for a convention, or as I have seen recently, they will only send a letter to their Senator "asking" for them to submit a resolution to Congress for a particular amendment.  As noted, this has not been successful as of yet, and I question why states are asking their Senator to submit something.  If the legislature of a state has decided an issue, they should be able to direct the Senator to act on behalf of the state in Congress, and if the Senator fails in acting, the state should be able to hold them to account for that - not necessarily remove them, but censure and reporting to the citizens of the state in what matters the Senator did not follow the direction of the state legislature.  Since we are a Republic, and the representative in Congress are suppose to represent the interests and concerns of the citizens they represent, this seems like a reasonable request to me.

I believe that the ineffectual use of the process is why Mark is suggesting, if my understanding of his video is correct, that the states get together and send the application as one application from among enough states to trigger the convention.

Mark, if you get a chance to read this and I have misinterpreted what I heard, I apologize for that.  

But, if what I have assumed here is correct, and based on historical evidence provided above, I actually have the same fear that Congress has of calling an open Convention of the states in regards to Amendments.  Unfortunately, with no specific direction in the Constitution, nor I believe in the Federalist Papers on this subject, since I have not seen anyone discuss this in depth, we are left with a situation where we aren't fully informed on what the framers intents were in providing this method of amending the Constitution.  Maybe Mark's book will explain his interpretation of what we do have in sufficient depth to clarify this matter.

My fears are that with the current state of our society, and the level of political correctness we currently have, a Convention with unfettered access to propose amendments will be an unworkable process.  Every special interest group, from PACs, Corporations, Christian (or insert any other religion here) Fundementalists/Evangelicals/Conservatives/Orthodox, same-sex marriage advocates/detractors, and basically every other realm of society, will insist on having their point of view debated and their point of view submitted to the states as a proposed amendment.

This is obviously an untenable position to put ourselves in.  If the Convention turns away any group, without actually taking up their proposal, then the Convention would face a legal challenge at the Supreme Court.  If the Convention accepted all proposals, they will face an unending stream of proposals, many of which would dramatically alter the state of the society if they do get passed and could undermine the original intent of the framers, though since the amendment still has to go to the legislatures of the states to be ratified, there is somewhat of a check on that.

In addition, who will attend this Convention?  How many from each state? If this is the place that amendments get proposed, what is to keep someone from buying off enough delegates to get their proposal through?

With no specific direction, or inferred direction, from the framers of the Constitution in this regards, I believe that the only way to address this is to get either Congress or the Supreme Court to make a determination how a Convention would be handled.  The difficulty here is determining what that legislation should be and how to make it so that no state gets deprived of the right to submit a proposed amendment, but would make the process one that would be workable.

I have been aware for many years of this second process to amend the Constitution, but only just recently considered even trying to get the process triggered.  My intent was to get enough states to pass one amendment along to Congress, triggering a single Convention for that one amendment, which would then be able to be used as a precedent setter and a way to be able to provide a framework for future Conventions.  But, in rereading Article V in light of Mark's video, I have to agree that there is not enough specific information in the Constitution to be able to say on the application of the legislatures that it would be for that specific purpose.  Maybe the best way would be to include that in the application, that the convention would be only for that particular amendment as submitted by the state.  Then, once we get one Convention called, the discussion could be opened as to how to proceed with future Conventions.

I will draft up an actual amendment proposal to define the scope of the Convention, and post that in the near future.

Thank you,

Amendment Guy
Twitter @amendment_guy

Thursday, July 11, 2013

Letter to SCOTUS

I posted the following letter to SCOTUS (for those of you unsure, that is the Supreme Court of the United States) in regards to their decision in Natl. Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 183

which is the decision they rendered June 28, 2012 in regards to the Individual Mandate in the Patient Protection and Affordable Care Act (Obamacare.)  This was sent to them via the Public Information Office (PIO) webform on the SCOTUS website here.

I am not sure if the PIO will even show this to the Justices or not, but worth a try.  As you can see from below, I personally don't think they should have reinterpreted the "penalty" as a "tax" so they could consider this Constitutional, as it gives Congress carte blanche on taxing us for ANYTHING WE DON'T DO that Congress feels we should.  Agree? Disagree?  Let me know.

Amendment Guy
Twitter @amendment_guy

I am not sure if you will even do this, but I would like these comments provided to the Justices in regards to the case referenced in the subject line.  I hope that you will pass this along.


In reading the decision that was issued on this case regarding the individual mandate of the Affordable Care Act, I am disturbed by the precedent set in this matter.

By your decision, you have given Congress overreaching taxing authority on all Americans.  By this, I mean, that if Congress were to decide to pass legislation that, for example, imposed a direct tax on the citizens for not smoking, by the precedent you have issued in this case, that would be a constitutionally allowed tax.

Allowing Congress to literally tax citizens for not doing something is a slippery slope that could potentially be abused in the future.  In cases where states have been "encouraged" to legislate certain desires of Congress, as in your reference in the opinion that Congress withheld funds from states for roads unless they raised the legal limit for drinking to 21, is not a good analogy.  This is an example of reducing an entitlement that Congress granted to the states for not doing something.  But in the case at hand, or in other situations as the hypothetical provided above, this is not reducing an entitlement but penalizing individuals for not doing something.

In addition, the Affordable Care Act does view not paying the penalty as a criminal act, in that it allows the IRS to confiscate future funds that the individual is entitled to as a tax refund.  Tax refunds are essentially a return of funds over collected and that the Government was not entitled to and are the property of the taxpayer.  Therefore, creating a situation that any individual that fails to pay the penalty will have a seizure of property at a future date - this is in line with the penalties associated with the criminal behavior of underpaying or not paying taxes owed.

The decision in regards to the Commerce Clause that it does not grant Congress the ability to force someone to engage in Commerce is a very clear point, but you invalidated that same portion of the decision by saying that Congress could tax you for not engaging in Commerce.  The two points are linked and should not be severed from one another. Saying that Congress can't force someone to buy something but can tax them for that same inaction is applying two variations to the same set of facts and circumstances.  I do not believe that the framers of the Constitution would have accepted an argument that you can tax someone for not doing something.  The discussion regarding a poll tax is also, in my opinion, a flawed concept.  To be able to pay a poll tax, you must be alive and breathing - therefore you are doing something, living.  And this is the extreme example.  The intent of the poll taxes in the early days was that it was easier to tax people based on being there than tracking their income or property.  Now that is not a problem with the reporting and information available in comparison to the time the Constitution was written.  Circumstances change, which is why income taxes were created to replace poll taxes. Though there is another large discussion that could be had in regards to income taxes, I will leave that for another day.

I urge you, therefore, to reconsider this decision.  I understand that based on your ruling, no action can be brought, but that is only because you reinterpreted the penalty as a tax.  If you take up a reconsideration of the matter and reverse your decision and call this a penalty, then the Anti-Injunction Act would not apply again.

I thank you in advance for at least reading these comments, even if you decide not to reconsider the matter.  I pray for your good judgement and that God will guide your decisions, as the framers of the Constitution were led by him.

Wednesday, July 10, 2013

Amendment Process

Article V of the U.S. Constitution reads:

"The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate."

Our founding fathers understood that they could not write a document that would always cover every conceivable right, privilege, or circumstance.  They understood that the People might want or need to change the document to ensure that the government remained under control and did not infringe on the rights that they confirmed were from God (the Creator, as they had previously noted in the Declaration of Independence.)

The amendment process itself actually can take two forms.  An amendment proposed by Congress itself, or upon application to Congress by two-thirds of the State Legislatures and then having to call a Constitutional Convention of the States.

The first method is the only successful process that has resulted in any amendment to the Constitution being enacted.  

There have been occasions when Congress has reacted to popular efforts at amendments and issued a proposed amendment themselves, rather than having enough states submit the application and having to call a Constitutional Convention of the States. I believe the reason for this is two-fold; first, the mechanics of a Constitutional Convention of the States has never been decided on nor provided for by the Founding Fathers in the Constitution itself and, secondly, the fact that since the scope of a Constitutional Convention of the States have never been defined, Congress is apprehensive that additional amendment efforts could be brought up during the Constitutional Convention of the States.

The idea of having a Constitutional Convention of the States was a brilliant idea, in my opinion, on the part of the Founding Fathers.  Though a significant group in the Constitutional Convention felt that only Congress should propose amendments, they chose to allow the language that is in Article V to be added.  This gave the States the ability to propose amendments to the Constitution that Congress itself would not, or are not willing to, propose.

In the current environment in Washington DC, there are some subject matters that would more than likely never be handled or proposed by Congress itself.  And even though there was a recent proposed amendment for term limits on Congress by a Senator, every source that I have looked at that follows politics concur that this amendment proposal has no chance.  Now, imagine if two-thirds of the States would submit a term limit amendment proposal?  Congress would have no choice then but to call all the States together in a convention to settle the point.

Once an amendment is either proposed by Congress or the States, it must be ratified by the States.  Three-fourths of the States must ratify the amendment via their Legislatures, by a convention of citizens in each state, or at a Constitutional Convention of the States.  The process to ratify via the Legislatures has been well used, with 27 amendments currently added to the Constitution, and Congress chose the Legislature ratification process each time.  In modern times, there have been states that have even tried resorting to citizen referendums to allow the citizenry to vote on whether or not to ratify the amendment, but the Supreme Court of the United States and Congress have both questioned the validity of those referendums, as the Constitution states that the Legislature shall be the one to be addressed with the ratification request.  Though no amendment's ratification has been invalidated due to a referendum, this could still be a challenge that could be used.

Next up: Defining a Constitutional Convention of the States

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How you can help!

So, with the capability to send an Amendment through the states, and if enough submit it to Congress, they have to allow the states to consider it, how can you help?

  1. Get the word out on any of the Amendments on here that you like.
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The more people that send the Amendment to a particular state legislature, the more likely it is that it will even get to the floor there for debate.  If I could, I would send it to every member of every state legislature directly, but I don't have a e-mail list for them all.  If you have one for your state legislature that you can put into csv format, let me know or send to me at


Amendment Guy
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Pay for Congress, et. al.

As the compensation of the members of Congress exceeds the National Median Income by nearly 300% currently, and to incentivize Congress to be concerned for the financial well being of the citizens and the overall well being of the economy of the United States, it is time to limit their income and tie it to measures that are indicative of the nation's economic health.

CLICK HERE to read a proposed amendment and if you agree, send this on to your state legislature.  Please comment if you send it on as to what state you have sent it to, so we can track this.


The Amendment Guy
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