Article V

It’s all about Health Care

Of the 50 top rated democratic countries on earth, each has universal health care (except for the countries with a population under three million). The United States is the lone exception. We are ranked 25^th on the Democracy Index. Countries that have large populations and do not have universal health care are more prone to dictatorship.

Our health care costs are about twice as high as other countries with universal health care and our health outcomes are similar.

The United States Supreme Court has had consistent heartburn over the constitutionality of the mechanics of universal health care. It seems that because universal health care was not around in 1787, the mechanics of the system were not written into the Constitution and therefore can be easily called unconstitutional. Ultimately, anything that is not specifically spelled out in the Constitution or its amendments may be subject to arbitrary decisions of the judges.

Thomas Jefferson laid out the parameters of the problem:

“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

When we see all the other countries with less expensive health care we must question the partisan loyalty of our Supreme Court judges.

One political party has dominated the appointment of judges to the court. Are we subject to the ‘despotism of oligarchy’? The answer would not surprise Thomas Jefferson. Moving from our present capitalistic health care system to a universal health care system would threaten the profits of the powerful pharmaceutical industry and the powerful insurance industry. In an oligarchy, those powerful industries would be favored over the will of the people. It seems that the political party that has dominated the appointment of judges is also in favor of ‘despotism of an oligarchy’.

And the will of the people can be influenced by carefully orchestrated propaganda. The oligarchs and there favored political party have had decades to contrive carefully stated phrases to support their position. Most of their phrases have been an attempt to prevent universal health care from hurting their profits.

‘Administrative state’ has been given a very negative connotation while each country with cheaper health care has a well-developed administrative state. This scares the oligarchs.

‘Tax and spend’ references the fact that universal health care involves a much larger budget. What is not said is that this larger budget is more cost effective.

‘Reduce the size of government’. Factually, you cannot obtain cheaper health care without a larger government footprint.

The favored phrase is that ‘socialism is bad’. All of the other large democratic governments have a larger degree of socialism and all have lower health care costs. We already have a socialized mail delivery system and a socialized federal highway system and many other aspects of socialism. Every nation seeks a balance between capitalism and socialism. In the long run, this move toward socialism means little more than a reduction in health care cost and saving 45,000 lives of those unfortunate Americans who fall through the cracks each year because they don’t have health insurance.

We must ask; will corporate profits dictate the function of our government and our health care system? And if biased judges are the ultimate arbiters of constitutional questions, are we moving directly to the ‘despotism of an oligarchy’?

Path to Success

The problem is the partisan divide that appears to be widening. Individual issues are secondary.

Every peaceful solution to solving the problem points us directly to Article V. Passing an amendment initiated by Congress is not a reasonable option in today’s contentious environment. By default, the process must go through state legislators.

This has never been done. It’s a complex process. Lack of complete understanding by the legislators is challenge. Each of the over 7,000 legislators must have a good grasp of the challenge. And each legislator must understand how and why their actions will reduce the partisan divide.

A balanced budget amendment may improve our financial long-term security but may not be a major factor in improving our current political climate. Think about it. Of all the contentious comments and conversations in the most recent election cycle, what percentage involved balancing the budget?

It is not fair to expect each state legislator to independently do a full investigation of the problem. There is no history lesson to follow and their primary concern is issues that affect the state, not the federal government. The state legislator may be viewed as the average college student or the average businessman. They need a clear set of guidelines and an opportunity to make an informed decision in a reasonable time frame so that they can move on to other issues.

The quickest and easiest solution may be a bundle of constitutional amendments that is most likely to reduce the partisan divide. What are the root problems of the arguments that we have been having and how can we make changes to put out those fires?

The lawmaker’s creed was indirectly derived from the Declaration of Independence. I can be used as a guideline for all lawmakers. ‘Maximize the efficiency of the economic engine that drives our economy while simultaneously maximizing the satisfaction of the constituents’. As we examine the myriad of possible amendments we find that most would not have direct economic effect. We are fighting over our divergent passions and political power plays. Absent and economic impact we should make laws that increase our level of overall satisfaction. Certainly, someone’s ox may be gored but overall satisfaction should be the goal.

State legislators need a set of parameters and a suggested group of amendments. This will make their task easier and efficient. Give them a goal and a path to get there. We have a path.

An outline of proposed constitutional amendments provided by a gathering of minds may provide grease to that path. It’s time to get started.

R-60 justification

Our Founders have strongly implied that regardless of the intransigency of Congress the principles of representative democracy should prevail. When the refusal to pass laws is the result of the strong lobbying by the fossil fuel industry, the insurance lobby, big pharma, the gun lobby or other powerful lobbies, the people still have the opportunity to influence the rights and duties of citizens.

Article V clearly gives the states the right to pass amendments to the Constitution. But that may not be a full deterrent to the faction that causes congressional intransigency. Many issues should not be cemented into the Constitution. The people’s desire for fuel economy standards may change. Campaign finance laws may cause an undesired result and law adjustments may be appropriate. Laws regulating the internet may be out of date in a short time frame. Amending the Constitution is a process meant for major issues and it is understood that the process takes a long time. Less important issues still need to be legislated. And the non-delegation doctrine clearly opposes the concept of letting the issues slide toward executive orders by the President or SCOTUS decisions that have a major effect on the rights and duties of citizens.

We have reached the point where failure of Congress to legislate important issues has become a force opposing the will of the people. The solution is right in the Declaration of Independence. Paraphrasing, ‘When our form of government denies the consent of the governed, it is the right of the people to alter it’. If Congress is failing to pass relevant laws, we must create a method to cause those relevant laws to be passed. In order to do this, Article I needs to be modified.

Direct democracy is not favored by many scholars because it may be too highly influenced by the passions of the people. A national referendum initiated by the accumulation of signatures is essentially direct democracy. But a national referendum initiated by the deliberate reasoning of elected lawmakers substantially differs from direct democracy.

Federalism is part of our system of government. The states already have the right to bypass Congress and pass amendments to the Constitution. By altering Article I, states may acquire the right to initiate national referendums. When Congress fails to pass relevant laws, a vote of the people could create those laws. And the powerful lobbyist groups that influence Congress would have substantially less influence on the process.

Dale Leitzke

spade@new.rr.com

A Flaw in the Constitution

Article 1 allows Congress to create laws. These laws often set policy. This policy may change over time and Congress has the ability to adapt and change the law and the policies that are created. That’s fine. But when the Congress cannot decide on policy for various reasons, the issue often ends up in the Supreme Court. The Dred Scott case is an example. Roe, Citizens, and Heller are also examples. Rulings by SCOTUS effectively set policy. The flaw is that Congress can no longer adjust that policy after SCOTUS has made the ruling. Just by deciding the case, the policy decision has moved from the jurisdiction of Article 1 to the jurisdiction of Article 3. The people are now stuck with the policy in perpetuity.

Although, on paper, it is possible to seat a new court that will rule differently, or to pass an Amendment to the Constitution that would overrule the court, those options are not real in a world of partisan politics. In effect the policy set by SCOTUS is cemented in place. Even if the ruling has unintended consequences, we are stuck with the law and perpetual controversy for an indefinite future period. The voters have a good reason to feel powerless because they cannot vote on the issue or elect representatives that can vote on the issue.

This gives SCOTUS an enormous ability to set policy on controversial issues. And those controversial issues increase political division. The more than the court ‘legislates from the bench’ the higher the level of partisan division. Indeed the Dred Scot case did not start the Civil War, but it did help to push the country over the edge. If Congress had decided the issues surrounding Roe, Citizens, and Heller there would be less controversy.

Dodging controversial issues is easy for Congress but tough on America. SCOTUS took many years to decide the Dred Scott case. Perhaps the judges were very scared of the negative consequences of legislating a controversial issue from the bench and scared of the precedent it would set. Is Congress setting us on the path of great upheaval by refusing to do their job?

Dale Leitzke

spade@new.rr.com

Bypassing the Roadblock to an Article V Convention

Records of the Philadelphia Convention (1787) show that the Article V alternative was deliberately placed in the Constitution as a check to an intransigent or unresponsive Congress.

In 2016 the Congressional Research Service stated:

“Renewed interest in the Article V Convention alternative has arguably been driven by public perceptions of policy deadlock on the national level and discontent with the nation’s direction. One political analyst recently argued that the nation is in a period of unusual political volatility, reflected in part by “eleven straight years in wrong track pessimism in national polling. This is the longest period of pessimism ever measured.” In late 2014, moreover, the Pew Research Center found that 81% of respondents expected political divisions to grow deeper and to continue. Eighty-six percent of respondents believed the nation would experience continuing partisan gridlock, but only 20% believed that there would be progress on the most important national problems in the near future. Critics might argue that, notwithstanding these conditions, the convention movement, in its present incarnation, has yet to attract widespread support among the general public or to influence action on this issue by more than a few state legislatures.”

National polling has not changed significantly over the past four years. That’s 15 years of dissatisfaction and a public perception of policy gridlock.

Appropriate legislation follows a robust public debate on the issues. That’s what’s missing. In Congress, partisan bickering has replaced useful public debates.

Article V allows the states to hold an Article V convention after 34 submit applications. That has never happened in our country’s history. Current conditions show a need, but apparently there is a roadblock.

The question becomes; is the bar too high or are we not properly prepared to clear the bar? Since lowering the bar is not an option (that would need an amendment to the Constitution) we need additional preparation to clear the bar, even if that lengthens the approach and adds a step to the process. And we should not look for help from the federal government. An A-5 convention puts the states in a potentially adversarial position with Congress because the amendments could reduce the power of Congress.

The roadblock was not envisioned by the Founders. Conventions were more commonly accepted in the late 1800’s. Delegates got together and discussed the issues. The number of issues that could be discussed at the convention was not a primary concern. This is called a general (plenary) convention. Applications to an Article V convention were mostly for a general convention during the next 100 years. The states held little fear that by holding an A-5 convention we would destroy our government.

The concept of a ‘limited’ convention arose in the 20^th century. A ‘limited’ convention may be held specifically to discuss the one or more issues listed on the state’s application. This provides a reasonable assumption that other issues would not be vetted and passed at the A-5 convention (that would be a ‘runaway’ convention). On the surface, the concept of a ‘limited’ convention appears reasonable. But in actual practice it creates a major roadblock.

Instead of getting together to discuss the pressing issues of the day, the states must agree on one topic of discussion. But there is no venue where the states may gather to achieve agreement on the topic. The prospective meeting takes place AFTER there is agreement. It is possible for a ‘prairie fire’ topic to achieve 34 similar state applications but this does not reconcile with the current need based on 15 years of dissatisfaction with Congress.

Some argue that any A-5 convention could pass amendments that deal with differing subjects. But numerous legal opinions contend that Congress need not submit these prospective amendments for ratification by 38 states if the language of all 34 states in their applications does not coincide with the amendment. If it’s a convention called by 34 applications for a general convention, then all amendments would be submitted to the states for ratification. Gathering applications for each potential topic from all 34 states is a giant problem when each state submits applications for a ‘limited’ convention. This is the roadblock that was not created by our Founders.

An A-5 convention may deal with many issues. Some may involve congressional oversight. Some may deal with Supreme Court rulings that satisfy the personal interest of Congress but not satisfy the general public. Both Congress and the Supreme Court may be negatively affected by the proposed amendments and therefore may have a propensity to put up roadblocks. Advancing negative comments (propaganda?) about a possible ‘runaway convention’ may influence the possibility of success.

The current approach to getting over the bar has been thwarted by the lack of a robust public debate. The power lies with the states. But governments tend to be reactive rather than proactive.

Single issues are promoted by private groups. They lobby states to present an application to an Article V convention for the purpose of passing a constitutional amendment that favors their cause. These groups tend to lobby for a ‘limited’ convention. The groups are often fueled by passion and partisanship. Partisanship damages any realistic chance of getting 38 states to support that issue. And grass roots passion can be associated with direct democracy rather than the deliberate reasoning of elected representatives. State government reaction to pressure by these private groups may not be the best way to proceed. It tends to bypass robust public debate on all of the issues of the day.

And the lobbying may be ineffective because state legislators may not be up to speed on the issue or the process needed to amend the Constitution. State legislators may also not be prone to jump onto a bandwagon because the recent historical success rate of these lobbying groups has been zero.

It seems nearly impossible to have a ‘limited’ convention and deal with all of the important topics that cause a low congressional approval rating. And if we try to deal with one issue at a time we risk the possibility of many conventions. Letting private organizations take the lead may not be the best course of action.

The Constitution describes the gathering as ‘a convention for proposing amendments’ not a limited convention for proposing one amendment. In essence attempts at having an Article V convention have been blocked by the awkwardness of the conflict between the ‘general convention’ and a ‘limited convention’.

The Constitution clearly gives power to hold an A-5 convention to the states. With or without help from private organizations, the states need to take assertive action to open the doors of the convention. The federal government cannot dictate the method(s) used to achieve the objective. Current reactive approaches have failed.

A robust debate over the domestic issues that face our country is a reasonable objective. That can be achieved at a ‘general’ convention of states. The gathering must be perceived as indispensable to the process of amending the Constitution. States have the power. The gathering becomes indispensable when the states say that it is indispensable.

The Pre-Convention

This gathering may be thought of as the first half of an Article V convention. Major debate takes place in the pre-convention and final wording of the Amendment takes place in the formal A-5 convention. The formal A-5 convention will be ‘limited’ to the topics that are vetted and approved at the pre-convention.

The process of passing laws has many steps including introduction of the measure into committee, consideration by the entire legislative body, and reconciliation between legislative bodies. Each of the steps is a part of the process. The pre-convention and formal A-5 convention are each indispensable parts of the process and may be compared to committees advancing legislation. Sending delegate approved legislation back to the states for state approval (that approval is shown by submitting an application to the A-5 convention) is part of the legislative process.

States governments tend to be reactive. Success of the pre-convention and subsequent A-5 convention will be dependent on proactive action by state government. They must seize the opportunity to act in the spirit of federalism.

Initiation of actions to hold a pre-convention will come from state leaders including state legislators. Each must fully understand the process and the parameters of the actual convention.

The function of the state legislators will be improved. Existing attempts by states to amend the constitution place individual legislators in an undesirable position. They are asked to support an idea. The request is typically made by a private, possibly partisan, group. The legislator’s knowledge of the process is relatively limited and the legislator often has little knowledge of the difference between and the consequences of a plenary convention and a limited convention. And the idea has not been fully vetted by public opinion.

The new path puts the state legislator in a better position. The legislator need not have good knowledge about the process or any individual issue. They can easily understand that their function is to assist in the selection of delegates to a convention where the state’s best interest will be represented. If and when an issue comes back for approval, it will have been fully vetted and a rough draft of the proposal will be available, not just a concept. In addition, the state delegates will have reported their position on the issue.

The function of private groups will be relegated to an inferior position. They may contact state legislators to promote calling a pre-convention and subsequently may show support for a fully vetted proposal. This streamlines the contacts with state legislators.

The plenary pre-convention will deal with issues that may not have been flashy enough to attract the attention of private groups. That’s a plus for representative democracy.

A vote in favor of a proposal by state delegates at the pre-convention sends the message that it is likely that their state legislature will vote to support the measure with an application to the Article V convention.

There is a distinct and important possibility that after the pre-conference is held and the process is completed, the states will change their views and hold the next conventions as plenary A-5 conventions. (All of the applications would be plenary.) This is an important talking point be used to convince everyone that the pre-conference is a result of the cumbersome nature of existing protocols. We can’t change the protocols and the current distrust surrounding an A-5 convention so it is necessary to take a longer path at this time. The landscape may or may not be different for future conventions.

Once a quorum of states has agreed to attend the convention, the others will fear losing their vote and being left out. A plenary convention is more likely to achieve a higher attendance. With a limited convention some states may not show up because they oppose the single (possibly partisan) proposal. A plenary convention allows each state to bring its own proposals to be vetted.

Pre-A-5 would develop a rough draft or clearly stated intentions on fully vetted subject but would not develop final amendment language. Clearly, the pre-A-5 is not a lawmaking body but fully developed intentions may streamline the A-5 application process.

The pre-convention may set procedural and rules precedent for the first A-5 convention.

Dale Leitzke

Today’s Best Opportunity to Amend the Constitution of the United States

By swearing and oath to the US Constitution, state representatives become obligated to serve the interests of the whole country, not just their state. Part of that obligation is to pursue oversight/reform of the US government per Article V.

This has never been done. Thus far, all amendments to our Constitution have had the full approval of the United States Congress. But in the last decade congressional approval ratings have been very low. No new amendments to our Constitution have been adopted in the last half century. What should the nation do about dissatisfaction over congressional action or inaction?

In 1973 the Bar Association stated, in reference to an Article V convention, “if the process were resorted to, it is likely would be against the backdrop of some dissatisfaction with prior congressional performance”

Careful analysis of available data suggests that an open convention is not likely to occur. All of the 34 state applications to an Article V convention would need to state that their intention was to have an open convention. Few such applications have occurred in the last half century. Therefore it is highly likely that the Article V convention would be a limited convention.

And even if we get approval from 34 states; that only allows one issue to be valid at the A-5 convention. Legal opinions from the Justice Department show that only that issue could be advanced to the states for ratification. That would dampen the overall level of enthusiasm by the public, the press, and those states that have limited interest in supporting an issue that may have been initiated by the opposing faction. A plenary convention is only possible if 34 states apply for a plenary convention in their applications. But the public favors change and the timing for amending our Constitution is upon us. Perhaps we should walk down a different path.

It may be helpful to translate the opportunities that lie in front of us into terminology that is consistent with the operation of government. An Article V convention is akin to a committee of the legislative branch of our federal government. Each state legislature essentially has one committee member.

Legal restrictions have indirectly limited open discussion in this committee. Committee members are geographically separated. Since the committee has never been called to order, full knowledge of the process, by state legislators, is lacking. Actions by the committee may have legal challenges. Recent history has shown that the overall challenge is too big. The task is too onerous. When we look at the sentiments of the nation we find several topics of concern. Dealing with each topic with one A-5 convention at a time is not realistic because of the logistics of setting up and executing the details.

Facing a difficult challenge it is often necessary to break down the problem into smaller components or smaller tasks. Procuring 34 similar applications prior to the A-5 convention may be too big of a hurdle. Our Founders may not have fully perceived the difficulty of the process. Or they may have just left it up to our generation to sort out the problem.

Whether it is a state legislature or a legislative branch of the federal government, by the time the measure gets to the floor for debate, most of the work has been completed. When a committee sends the measure to the floor for a vote, and the large majority of the committee favors the measure, the measure is often approved. Approval is even more likely if the committee has had extensive communications with the rest of the legislative body during the process of developing the details of the measure. Much of the hard work is done in committee.

We should not expect that most of the hard work at an A-5 convention should be done on the convention floor. The convention floor should be used for refining the measure and voting on it, just like the floor of other legislative bodies. So our problem is what path should be taken to get multiple potential measures, mostly completed, to the floor of the A-5 convention. Individual organizations do not have that capability and are generally concerned with only one potentially partisan measure. Individual States lack the appropriate level of communication with other States. Their applications are not properly refined.

If we compare this process to a typical legislative process, we find a missing step. Individual states are effectively members of a government reform committee. Individual organizations lobby just one member of that committee and typically deal with just one issue. Successfully lobbying 34 committee members on multiple issues, while the members are widely separated geographically, is a daunting task. The task for individual organizations, in spite of widespread public support for the issue, is too great.

Individual states are not equipped to act as an effective government reform committee. Since the committee has never been called to order, individual members of state legislatures may be oblivious to the existence and function of this committee. And communication with other legislatures (committee members) is not part of their anticipated job description. The Constitution is requiring states to approve a measure or multiple measures without a mechanism for proper vetting. The missing step is the mechanism for proper issues vetting prior to the filing of an application to an A-5 convention.

When a task is daunting, it is often necessary to break down the task into smaller components. One large component, an A-5 convention, may not be adequate to get over the high bar.

A three step process is suggested here. The objective is to produce well vetted measures for the floor debate at the A-5 convention. The convention is step three. Step two is approval by 34 State legislatures. Step one is calling the government reform committee (pre-convention) to order.

Calling the committee to order is not an A-5 convention. But it is part of the legislative process needed to amend the Constitution. Realistically it is the part where the hard work is accomplished. Vetting of issues occurs at this sub-committee meeting. It is a pre-convention meeting but that label undersells the function of the gathering. It may be the best path to successful government reform/oversight.

The government reform committee functions in a plenary manner. Constitutional restrictions on an A-5 Convention do not apply. Discussion of multiple issues is at the option of the state delegates. Operation of the committee may be similar to any other committee in any branch of state or national legislature.

Those issues that come out of committee go to the state legislatures for approval which in this case is an application to an A-5 convention. Therefore is would be prudent for each delegation from each state to fully communicate with their respective legislative leaders prior to casting votes in committee. The process of vetting proposals and communicating with state leader may be lengthy but this is the hard work required to achieve success.

With prudent action by individual state delegations, approval by 34 delegations will result in 34 state applications for an A-5 convention. The number of approved issues is at the discretion of the committee. (Obviously, existing relevant applications will count toward 34 needed.)

We may expect that the duration of an A-5 convention to be shorter than the time needed to do the legwork needed by the government reform committee meeting. Actions at the A-5 Convention may be limited to refining the final language of proposals that already have approval of a super-majority of state delegations.

The concept of doing the hard work at the government reform committee (pre-convention) must be fully understood by each state legislature. The Founders did not give us a 50 state path to amend the Constitution and bypass Congress. They trusted that when public sentiment favored reform, we would find our own way.

It is not a trial run. The government reform committee will be vetting amendments to the Constitution. All States should want to participate so that their vote will be counted. If a state opposes the process or a specific amendment, then let them vote their intentions rather than boycott the process. Not showing up for this gathering is akin to not sending your Senators to Washington D.C. It’s all part of the same process.

What is truly needed is an organized robust debate in a setting that has constitutional implications.

To add full legitimacy to the process, the pre-convention should be opened by the Vice-President of the United States.

No partisanship

No appearance of impropriety

No heavy handed actions

Maximize transparency

This is representative democracy in action.

Voter Suppression

What part of the phrase ‘all men are created equal’ allows State governments the right to disenfranchise some of its voters?

The answer is technical and disturbing. The phrase was written into the Declaration of Independence which essentially laid out the guiding principles of our government. The facts of the law, according to the Unites States Supreme Court, are written in the Constitution. The implication is obvious. Apparently, the Founders decided over the few years between the signing of the Declaration of Independence and the adoption of the Constitution that the principles laid out in our founding document should be discarded.

But that is not the case for two reasons. First the Constitution does not specifically state that the disenfranchisement of some of the voters is unconstitutional. Secondly, no one that approved adoption of the Constitution ever stated that it should follow the principles laid out in the Declaration of Independence. It is implied, but not stated. Implied does not create law.

The evolution of the interpretation of the law has been twisted and bastardized for over two centuries. Moral guideposts are at the discretion of the better angels or darker angels of government.

Our forefathers fought to defend our representative democracy. As we examine the Democracy Index we find that one of the main yardsticks used measure ‘full democracy’ is free and fair elections. All forms of voter suppression moves our country down on the yardstick that measures ‘full democracy’.

We have a choice. We can let the forces that persist in disenfranchising voters continue to harm basic democratic principles. Or we can pass a Constitutional amendment that bans all forms of voter suppression. Our Founders had the right idea but did not cement the idea into the Constitution. It’s time to put those guiding principles into law.

Justice Department Reform

If the majority is allowed unrestricted rule, the slide toward dictatorship is inevitable. When the Senate and the justice department become pawns owing full allegiance to the President, our current system of checks and balances do little to restrict Presidential power. And once the precedent has been set, it remains in place and is not reversed by future Presidents. When the justice department is coerced into never investigating wrongdoing by the President, he is effectively above the law. There is no law that prevents the United States Attorney General from pledging loyalty to the President.

Careful study of our Constitution shows that supervision of the executive branch of our government can only be done by the States by use of Article V.

Oversight of the President cannot properly occur if the Attorney General has control over investigations of Presidential wrongdoing. Ultimate authority must be shifted to the States. Our best opportunity to investigate wrongdoing by the President or his inner circle still remains with our federal justice system but the party making the decision on who is investigated and the extent of the investigation must shift away from the Attorney General.

Both the Ken Starr investigation and the Robert Mueller investigation were seriously tainted by partisan influence. Even the appointment of these special investigators was politically influenced. So long as the majority party is in charge of the investigative process, true justice may be nebulous.

The most important question is who can serve as a trusted semi-independent prosecutor. In a federalist system, the States have a shared governing responsibility. In the case of oversight of the executive branch of government, the best state level prosecutors may be considered. Partisanship among the States is similar to partisanship in Congress but the difference is that state level prosecutors have not pledged loyalty to the President.

Selection of a semi-independent prosecutor must be left to the States. Certainly, the pool of potential prosecutors begins with the 50 attorneys general. One political faction usually has a majority so in order to achieve a semi-independent result; a supermajority of states may be needed to weed out the most biased candidates.

Selection of a semi-independent prosecutor would be a substantial process. Therefore use of this special prosecutor must not be taken lightly. Logically, it would be initiated by members of the federal government and not by potentially biased State factions. Yet we cannot wait for a majority of Congress to initiate action because that majority may have loyalty to the President. Therefore we must consider the initial premise, if the majority is allowed unrestricted rule, the slide toward dictatorship is inevitable.

The States will decide if the need is sufficient to appoint a prosecutor. And elected officials in the States will live with the fallout of the decision to appoint or not appoint the special prosecutor. Ultimately, the decision on taking action will be up to the prosecutor. Evidence supplied to the prosecutor by members of our government (suggesting member of Congress) will be weighed. (Consider that if only 2 Senators seek a special State prosecutor, that may not be enough, allowing radicals too much power, and if the bar is set too high and 40 Senators are required, that may diminish the opportunity for justice. 10 Senators, representing at least 5 states, or 10% of a legislative body is substantial.)

This process may be cumbersome, but it does not place a substantial financial burden on the federal budget. And once the process is in place, the propensity of members of the executive branch of government to break the law will be diminished.

Massive reports are made at the request of politicians for consumption by politicians. The State’s prosecutor acts on the basis of laws that may be violated. Results will be conclusions as to whether specific laws have been violated. Opinions as to whether a President should be impeached will be beyond the scope of work of the prosecutor.

The special prosecutor will seek to convict all parties found guilty. All of the powers of the United States Attorney General will be vested in the special prosecutor during this process. Sentencing will be carried out for all except the President. In the case of the President, sentencing recommendations, with the assumption that the President is not in office, will be given to Congress.

The Humility of the Founders

As good as the US Constitution was at the time of its writing, the authors knew it could be made better- they added Article V.

The Constitutional Convention that convened in Philadelphia in 1787 was an eloquent demonstration of democracy at work. There were a number of leading citizens among the delegates, but if the group had entrusted the job of writing the new Constitution to one or more of their impressive intellects, it is likely that a United States would not have emerged from the conclave. They perceived that they must, as a group, listen to the ideas suggested by each and every delegate and arrive at a consensus on all of the issues presented. They knew that they would need to compromise on some strongly-held beliefs if they were to be successful in creating a new republic. And compromise they did. They showed the world that democracy can work.

Was the ultimate product of their labors perfect? Of course not, but it was a significant step forward in mankind’s quest for freedom from the tyrannical forms of government that had dominated peoples around the world throughout recorded history. The experience of the founders brings to mind the old adage that “perfection is the enemy of the good.” They knew this to be true, and produced a serviceable, good product that launched the American Experiment on the world stage. It embraced a fundamental conviction that mankind is capable of self-government in a system that provides substantial freedom for the individual. It introduced to the world two core values for a government: (1) maximum personal freedom for its citizens consistent with the observance of the equal rights of one’s fellow citizens and of national security considerations, and (2) the natural, inherent worth of every individual in society. These perceptions had been slowly growing in human consciousness for hundreds of years; our founders seized the opportunity to act on them as they carved out a new society in the new world of North America. And, as the cliché goes, the rest is history.

But you, the reader, know all this . . . the purpose of this essay is to point to a small act of humility by the founders that was truly prescient: the eleventh-hour addition of Article V to the Constitution which provided for its amendment in the future. By this act, the founders were acknowledging that the document they labored so hard to create was the best they could do under the circumstances of the day, but that it was not perfect and there must be provision for its amendment.

With the ink on the new Constitution hardly dry, the wisdom of this was readily apparent as the states considered its ratification. It was quickly agreed that, while personal freedoms were implicit in the document it would be wise to set them out explicitly to make them abundantly clear. The first ten amendments (which we collectively refer to as our Bill of Rights) were quickly written and promptly ratified pursuant to Article V, and the Constitution had survived its first crisis. It emerged a significantly improved document.

Today, our republic is dysfunctional and in dire need of repair. But we face resistance to reform changes from two groups: those who fear that changes to address problems could result in a loss of personal power, and those patriots who idolize the founders and insist that the founders’ work cannot be improved. But the founders themselves refuted this form of adulation and acknowledged their humility by giving us Article V, so we must overcome this opposition. First, we must recognize that the lust for power has a very destructive impact on the republic, and second we must help the patriots to see that their actions to block repairs are damaging to the very Constitution and republic they profess to love.

Were the founders insightful? Absolutely. Infallible? Of course not. Audacious? Yes, launching the American Experiment took great courage and trust in their fellow man. Humble? Most certainly, and we should be eternally grateful for that humility, which made the Experiment possible.

We must convince the patriots that, as a society, we are capable of rational self-government while protecting our precious freedoms; they must learn to trust the collective wisdom of the people but distrust the personal hubris that seems to drive many of our political elites. These elites believe that their intellect should be recognized as superior to the collective wisdom of the people, so they should be entrusted with the authority to direct the national political dialogue. But the founders had fought a war to free our country from the elite who ruled the British colonies in America and did not trust them to govern fairly. Instead, they included Article V because they trusted the wisdom of the People when they launched the American Experiment in democracy, and we need to prove that their confidence was not misplaced. We have the power; we must exercise that power and act now!

This article was found on the Path to Reform website.

Article V

Each State legislator is part of a standing committee of the legislative branch of the federal government. Calling an Article V convention brings the committee to order. The fact that the committee has never met is irrelevant in Constitutional law.

State legislators may not fully comprehend the ways that Article V can be used to improve flaws in our government. The Constitution allows them to bypass Congress and the special interests that have Congress in their grip. It can be argued that, if America seeks to improve our national government, State legislators have not only an opportunity, but an obligation to do so.

It all starts with the principles laid out in the Declaration of Independence; ‘consent of the governed’ and our right to change our government. The Constitution lays out our framework of laws and sets out Article V as the instrument with which our government can be changed. George Washington’s Farewell Address provides practical guidance. He emphasizes ‘checks and balances’ and ‘separation of powers’ to prevent despotism and urges restraint of political parties.

Alexander Hamilton (writing in The Federalist #85) argued that the second part of Article V would enable state legislatures to “erect barriers against the encroachments of the national authority”

Article I of the Constitution gives Congress extensive power to adopt legislation. It deals with most issues but fall short on one issue. It cannot effectively oversee itself. The Constitution, by default, gives that oversight to the States. Since Congress also has the ultimate power over the Supreme Court and the Executive branch of government, general oversight over the entire government also defaults to the States.

George Washington’s Farewell Address was written over a long time frame and assistance was given by James Madison and Alexander Hamilton. It lays out the Founding Fathers practical perspective of the function of government and the pitfalls inherent in our representative democracy. Most would agree that, thus far, this government has stood the test of time and States oversight has not been necessary. History has demonstrated that true oversight of our government has been, in part, due to the better angels of human nature. And this has contributed to our longevity.

In recent history, a Democracy Index has been developed. It compares the level of democracy in each government. Of the 167 regimes we now rank 26^th best for highest level of democracy. The parameters of ranking are closely associated with the issues laid out by Washington. Clearly Washington hoped that our government would be near the top of such a ranking system.

But we are not in the top tier of democratic countries. Of the four systems of ranking, we are only second best. The ranking system (Democracy Index) is detailed and based out of the United Kingdom. And our rank has been recently declining. We are now rated a Flawed Democracy.

When we, as a country, find that we are no longer a ‘shining city on a hill’ or a ‘beacon of democracy’ and our government is not appropriately responsive to the will of the people, it’s time for a change. When we find that we are sliding down the democracy index and picking up additional traits found most commonly in flawed democracies and hybrid regimes, it’s time for a change.

Here’s George Washington’s advice: “If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation…” Clearly, Washington is referring to Article V. And if a series of elections have not corrected the wrong, then the only other Constitutional option is the second part of Article V; oversight by the States.

An Article V convention could also be named the Government Oversight Committee. Its function is to propose amendments to the Constitution. Its practical purpose is to provide oversight over the branches of government for issues where Congress is not as likely to provide that oversight. Indeed, congressional oversight may be subject to self-interest, partisanship, or the influence of special interests.

In Congress, our better angels of human nature are sometimes hijacked by greed and lust for power and fame while abandoning the principles laid out in the Declaration of Independence. State representatives are more separated from federal government influence and their better angels of human nature may act independently.

It’s been a half century since the Constitution was amended. Congressional approval ratings are at historical lows.

If we do indeed believe that our democracy is sliding down the Democracy Index and away from the principles that were laid out by the Founding Fathers, and that we want to stop or reverse that trend, then the logical step is to call the Government Oversight Committee to order.

Thus far, all efforts to open the convention doors have failed.

In the past, the first part of Article V was effectively used to amend the Constitution. Polarization now has a firm grip on the United States Congress. Use of the first part of Article V as a method to correct government flaws is unlikely in this environment. Because of the high level of polarization, an increasing number of issues are seen as partisan issues. Substantial discussions of amending the Constitution, for any reason, have not been on the table for many years. The potential numbers of issues that may best be handled by the Oversight Committee have increased.

Failure to open the convention doors is due primarily to the lack of political will. Political will has been lacking due to the perceived lack of necessity. But other factors are also relevant.

The public and State legislators are not fully informed. Media attention to this government oversight opportunity has been scarce to non-existent. Partisan efforts to open the convention doors have caused fear from opposing factions and this has poisoned the atmosphere. Leadership and organized efforts between States has been scarce.

Ultimately, it comes down to two factors. First, State legislators must choose to pursue oversight of the federal government. Secondly, State legislators must be willing to consider non-partisan measures. The overall objective may be stated as government oversight as intended by the framers of the Constitution, not just passage of an individual proposal.

In order to gain approval of 38 states and pass a Constitutional amendment, the measure will necessarily be non-partisan. This is because each faction in our two-party political system has enough States to block a partisan measure. A proposed amendment needs to benefit the large majority of Americans, not just one faction.

If the measure must end up being non-partisan, then why should we not start it out in a non-partisan fashion? It is doubtful that any group will ever amend our Constitution by making a partisan statement.

Perhaps the bar is too high. Gaining approval from 34 States has shown to be awkward and disorganized process. In the era of the Founders, only 9 States were needed to open an Article V convention, and they were all located in the same geographical region. If the true objective is to seek oversight over the federal government, then we must seek a non-partisan solution that clears this high bar. The tools are in the toolbox. We just need to work together instead of attempting an all-out assault with just one (potentially partisan) issue.

Different States have submitted applications with varying proposals to amend the Constitution. Individually, the proposals may seem to be partisan ploys. But if the proposals were all lumped together, the lumped proposal would be far less partisan. The agenda at the convention would be expanded. And if this makes the act of opening the convention doors more likely, then this is an appropriate step toward the goal of government oversight.

The act of opening the doors of an Article V convention sends a message to the entire federal government. The message is that the branches of federal government do not have unlimited power because the States have an oversight function. That alone makes despotism, as described by George Washington, less likely. And if we do not open the convention, it empowers those who seek a government that is lower on the Democracy Index. Each time that an issue is debated at the convention, it is an exercise in government as intended by the Founders.

Those debates set national precedent and the press will take notice. Media coverage emboldens the process and informs the public on those issues. Without the conventions, those issues may not gain public attention. Washington argued that “the American government needs to ensure “the general diffusion of knowledge throughout the United States; the government has been created to enforce the opinion of the people, so the opinion of the people should be informed and knowledgeable”

The convention may attract more statesmen and fewer political pundits. Non-partisan debates can send a non-partisan message in a partisan arena.

It may not be important that any specific issue be debated. What is important is that important issues are being debated and that those issues that ultimately truly concern the public will be vetted. Adoption of an amendment to the Constitution is a result of public will.

Our Constitution provides only one legal and authorized method of supervision over the federal government. A bundled application may be the best opportunity to engage that oversight. If the national sentiment is to exercise federal oversight, then State legislators must make a choice. Each State legislator pledges allegiance to the flag of the United States of America. Americans expect them not to pledge allegiance to a State Flag or a party banner. Their non-partisan support will open the doors of the Article V convention. State legislators may choose to vote for a measure that creates that oversight, even if they do not have a strongly favored proposal to be vetted at the convention.

Fear and misunderstanding contribute to the lack of political will.

Although the Constitution does not state that the purpose of an Article V convention is government oversight, that purpose is most logical at this time. In theory, the entire structure of government could be changed at an Article V convention, but that notion has no support from the public. Indeed, in the past 100 years, no state has applied to an A-5 convention for the purpose of achieving a major restructuring. Recent application topics have dealt with:

Fiscal restraints

Term limits

Balanced budget

Campaign finance reform

Countermand amendment

Those that spread fear of a ‘runaway convention’ may have a vested interest in preventing the A-5 convention. All those associated with the federal government may oppose their own oversight and promotion of the term ‘runaway convention’ may be in their best interest. Any change to the status quo is bound to bring out paid pundits to stand in opposition. From a practical non-partisan viewpoint, any measure that is approved by 38 State legislatures must be good for the country.

Attempts at holding an A-5 convention for one issue have failed. This method lacks communication between states that could occur after the doors were opened. Instead of limiting the convention to discussion of one issue, the convention can be called for all of the recent issues for which States have issued applications. That would bring state legislators (often from different political parties) together for discussion. It would also create necessary media exposure. It is easy pickings for naysayer propaganda when the public is left out of the main conversation. Success in adopting a new amendment to our Constitution is not assured but A-5 convention will initiate a national conversation on specific issues and that conversation will directly or indirectly lead to better government.

If all of the topics on applications in the last seven years were bundled, we would have the five topics shown above.

A structured application would serve three functions. First, by naming topics it would serve the legal obligation to provide the reasons for the application. And at least one of those topics mustbe reasonably matched to obtain the 34 state applications on the same topic necessary to open the convention.

Secondly, the State may lay out its expectations for the convention. A limited convention is likely to be most desirable. Laying out the limitations of the convention may serve to encourage State legislators to approve the application. Limitations may include only allowing a vote on those topics where applications have been recently submitted. For reasons of conflict of interest, those who have close ties to the federal government may not be allowed as delegates at the convention. Any and all potential limitations may be discussed in advance prior to the submission of the application.

Thirdly, the State may lay out its intended actions if its expectations for conduct at the convention are not met. A State may withdraw from the convention at any time. If many States had similar withdrawal threats in their applications, the structure of the convention would be limited. A stated intention to withdraw from the convention for reasons related to a ‘runaway convention’ would act as a deterrent for radical actors at the convention and therefore encourage State legislators to approve the application.

Fear of a too-specific amendment may cause Congress to act (perhaps to water down the language and make it more desirable to congressional interests). History has shown that theprospect of an A-5 convention has caused Congress to initiate action on many Constitutional amendments.

Many of the issues in the bundle may never be addressed by Congress especially if they deal directly or indirectly with Congressional power, or congressional perks. It’s basic human nature that the federal government wants to legislate itself more power while giving the states less power.

A well-functioning government should take away those factors that cause loyalty to the party to supersede loyalty to the country. “political parties must be restrained”. Thus far the only restraint of political parties has been due to the better angels of our human nature. If hyper partisanship has recently had a negative influence on the better angels of our government, then oversight by those not directly connected to the federal government is a logical course of action.

Someone’s ox will be gored. Powerful interests already in place may lose some of their power if we move up the yardstick of Democracy. Paraphrasing the Declaration of Independence, ‘government should not be changed for light and transient causes but when a long train of abuses leads in the direction of despotism, it is our right, it is our duty, to make the necessary changes’. When attempting to accomplish those changes, we cannot let the interests of the few dominate the interest of the majority.

If we wish to avoid a drift toward despotism, as described by Washington, we must address these issues of separation power. Today’s federal legislative branch of government is not addressing these issues and therefore puts our representative democracy in danger. Article V provides State legislators an opportunity to halt the drift.

As government evolves over time, we face the prospect that it may move away from our Founder concept of ‘consent of the governed’. The best oversight option provided by our Constitution is Article V. Prudent use of this option should be seriously considered in these challenging times.

Dale Leitzke

Alexander Hamilton (writing in The Federalist #85) argued that the second part of Article V would enable state legislatures to “erect barriers against the encroachments of the national authority”

George Washington’s Farwell Address was written over a long time frame and assistance was given by James Madison and Alexander Hamilton. It lays out the Founding Fathers practical perspective of the function of government and the pitfalls inherent in our representative democracy. Most would agree that, thus far, this government has stood the test of time and States oversight has not been necessary. History has demonstrated that true oversight of our government has been, in part, due to the better angels of human nature. And this has contributed to our longevity.

It’s been a half century since the Constitution was amended. Congressional approval ratings are at historical lows.

Thus far, all efforts to open the convention doors have failed.

Failure to open the convention doors is due primarily to the lack of political will. Political will has been lacking due to the perceived lack of necessity. But other factors are also relevant.

The convention may attract more statesmen and fewer political pundits. Non-partisan debates can send a non-partisan message in a partisan arena.

Fear and misunderstanding contribute to the lack of political will.

Fiscal restraints

Term limits

Balanced budget

Campaign finance reform

Countermand amendment

If all of the topics on applications in the last seven years were bundled, we would have the five topics shown above.

Dale Leitzke

​As good as the US Constitution was at the time of its writing, the authors knew it could be made better- they added Article V.

As good as the US Constitution was at the time of its writing, the authors knew it could be made better- they added Article V.