Alas, ALEC continues its war on the U.S. Constitution.
Last month's diary discussed ALEC's efforts to rewrite the Tenth Amendment and return us to governance by the Articles of Confederation (States' Rights My @$$!). ALEC again strikes at the heart of the Constitution, this time through Article V. The organization has proposed no fewer than three separate resolutions to subvert the means by which the Constitution is amended. In mapping out its attack, ALEC has even published a manual!
The ALEC resolutions are a threat to our democracy because they presuppose that the States (rather than "We The People") are charged with proposing amendments to the U.S. Constitution. Follow me below the fleur-de-Kos for a detailed recon of the ALEC battlefield.
ALEC on Democracy: Constitutional Amendments
When the framers of our Constitution designed the framework upon which our country was built, they wisely included a mechanism by which to amend it, should it be found lacking. That provision is Article V:
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.The literature on the history of Article V interprets it to mean that amendments to the Constitution are to be made by Congress or by "We The People" at an Article V convention. Until now, all amendments have been proposed by Congress. Over the past 200 years, various States have made application to Congress to call such a convention, but legal and political wrangling have forestalled, so far, any such gathering.
First, Congress has passeds its own amendments when it appears a sufficient number of States would otherwise support a particular issue. Second, Congress may aggregate State applications in a way which ensures that the “two-thirds” requirement is never met. This, perhaps, is the cause for the groundswell of support for calling a convention to consider issues Congress has avoided (such as overturning Citizens United).
So … enter ALEC … and its three resolutions re-interpreting Article V so as to circumvent Congress and allow the States to call a convention or propose amendments directly:
1) Resolution on Article V 2) The Madison Amendment 3) States' Initiative Amendment
It is important to note that these are not “model bills” to be passed by State legislatures ... these are attempts to mess with the U.S. Constitution! Specifically, ALEC proposes to circumvent or rewrite Article V to exclude "We The People" and to alter the balance of power between the federal and State governments. This is nothing less than corporate invasion of the federal realm.
Resolution on Article V
Therefore be it resolved that the American Legislative Exchange Council (ALEC) support and facilitate the education of state legislators about how an Article V Convention called by state legislatures could be reliably limited to an up or down vote on the text of a single amendment to the U.S. Constitution, including the possibility of an amendment that would give two-thirds of the states the explicit right to propose amendments without having to obtain the consent of Congress.At first blush, this resolution appears to authorize ALEC to educate its members about the process for amending the U.S. Constitution. The phrases "up or down vote" and "single amendment" purport to reflect some new interpretation of Article V when in fact that option has been available the entire time.
Upon closer examination, however, this resolution is problematic in at least two respects. First, any action taken regarding the Constitution must operate within the confines of the Constitution in its current form. Therefore, it is inaccurate to allude to “an Article V Convention called by state legislatures” since currently only Congress has the power to call an Article V convention. Second, the claim that States must currently “obtain the consent of Congress” is flat out wrong because there is no such requirement in the text of Article V.
Perhaps what ALEC really means to accomplish with this resolution is to propose an amendment altering or replacing Article V so that two-thirds of States can call a convention and propose amendments without having to apply to Congress.
The Madison Amendment
Article – the Congress, on application of the legislatures of two thirds of the several states, which all contain an identical amendment, shall call a convention solely to decide whether to propose that specific amendment to the states, which, if proposed shall be valid to all intents and purposes as part of this Constitution when ratified pursuant to Article V.This proposed amendment would insert a new Article into the Constitution. As the name implies, this new Article would be based on James Madison's position during the original Constitutional Congress, that the applications of the several States must be identical.
It should be noted, however, that Madison's position was not adopted by the Constitutional Congress because it was felt to be too difficult to attain. Further, Constitutional scholars have predicted that applications containing the actual language of an amendment would violate Article V and therefore be unconstitutional. The rationale behind this interpretation is that including the actual language of a proposed amendment in the application would remove the need for a convention and therefore eliminate participation by “We The People.” This is an extremely important concept to understand -- allowing States to propose amendments would eliminate the need for a convention.
States' Initiative Amendment
NOW THEREFORE BE IT RESOLVED, BY THE LEGISLATURE OF THE STATE OF {INSERT STATE}, A MAJORITY OF ALL MEMBERS OF THE TWO HOUSES CONCURRING SEPARATELY HEREIN, that the Congress of the United States is hereby petitioned to propose the States' Initiative Resolution as an amendment to the Constitution of the United States for ratification by state legislatures. This resolution shall be submitted to the states for ratification, providing for the states a method through which they may amend the Constitution of the United States.The first paragraph appears to be the text of a model resolution which has already been distributed to the States. If passed at the State level, they would petition Congress for the amendment described in the second paragraph. This approach would likely be rejected by Congress on procedural grounds because it is a "petition for an amendment" rather than an "application for a convention." Also, this resolution proposes the text of the amendment which is likely unconstitutional as described under The Madison Amendment, above. As for the last sentence of the paragraph, it is unclear whether it is intended to be part of the State resolution or merely a precursor of the proposed amendment.BE IT FURTHER RESOLVED that to achieve the purpose expressed above, the States' Initiative Amendment shall provide that: Whenever three-fourths of the legislatures of the states deem it necessary, they shall propose amendments to this Constitution. These proposed amendments are valid for all intents and purposes two years after they are submitted to Congress. The said amendments will be invalid if both houses of Congress, by two-thirds vote, disapprove them within two years after their submission.
As mentioned above, any proposed amendment must operate within the confines of the Constitution as it exists today. The wording of the States' Initiative Amendment would likely be unconstitutional on several grounds. First of all it proposes the text of the amendment and thereby eliminates the need for a convention. Secondly, it usurps the power of Congress in managing applications, calling a convention, and submitting the resulting amendment(s) to the States for ratification. Thirdly, it would ensure that future amendments circumvented the ratification process completely because it would start out with three-fourths of State legislatures (rather than the current two-thirds). Lastly, and perhaps most importantly, these future amendments would be effective two years after submission unless rejected by Congress. This last provision is particularly alarming given the inertia of Congress during the last session!
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If we are to ward off these attacks on our Constitution, we must be effective members of "We The People." To be effective we must be armed with knowledge. We need to know what our representatives are thinking about to prevent the kind of debacle Wisconsin is facing. Right now ALEC has made it easy for state legislators to be thinking about how to attack the Constitution, rewrite Article V, and remove "We The People" from the amendment process. We must defend our democracy and protect our Constitution.
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Previous ALEC diaries by this author: * The Smart ALEC Strategy * ALEC Takes Aim at Voters * States' Rights My @$$!