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US Justice Foundation, defender of constitutional law, assails Con Con in Richmond

February 5, 2015

U.S. Justice Foundation Open Letter to State Legislators
Concerning the Proposed Article V Convention of the States

(delivered to each member of the Senate and House of Delegates, Virginia)

Contrary to the claims of some proponents, the prospect of an Article V Convention of the States ("COS") is not a new idea which has been "hidden away" by the Founders in the Constitution for such a time as this, only to be "discovered" by modern "constitutional scholars." The U.S. Justice Foundation is one of the oldest conservative legal foundations in the nation, and it has on numerous occasions over the past 36 years, considered a variety of proposals to call a Convention of the States under Article V of the U.S. Constitution. Indeed, calls to revise the Constitution were ill considered when they were advanced by certain liberal groups in the past, and are still ill considered when being advanced by a few conservative groups now. This is not an idea which has improved with age.

The very notion of opening up our U.S. Constitution for re-examination and revision should send shivers down the back of all liberty-loving people. The U.S. Justice Foundation believes that the circumstances that led to the writing of our constitution during the summer of 1787, and its ratification in 1789, were unique in the annals of history. The men who gathered in Philadelphia had just risked their life, liberty, and property in asserting their independence from England. By their heroism, they demonstrated a love of liberty and a fear of centralized government that is rare today. Their education contained a healthy dose of Biblical training and an understanding arrived at through serious study of classical and other experiments in self government. It was a singular circumstance that led to a document that should properly be viewed as a gift to the American people from a gracious and loving God.

Anyone who believes in times such as these that improvements can be made in the U.S. Constitution, without grave risk to the rights given to us by our Creator, is embracing folly.

In this open letter, the U.S. Justice Foundation addresses briefly two of the false premises that COS proponents claim have driven them to this extreme measure, and two of the false assurances that they have provided, particularly to legislators, about the supposedly benign nature of a Constitutional Convention.

False Premise 1. The problem of big government is found in the text of the U.S. Constitution, which can be corrected by changing the words of the document.

The U.S. Justice Foundation litigates and files briefs across the country in important constitutional cases on a continuous basis. For decades, its work has ranged broadly across the text of the U.S. Constitution, and in recent years has done much work on the First, Second, and Fourth Amendments. Although USJF regularly has problems with the decisions of judges who want to impose their will on the American people, in our work rarely - if ever - is USJF limited in its defense of liberty based on the text and historical context of the U.S. Constitution.

In other words, freedom can be well defended based on what the Founders have given us as the text of the First, Second, Fourth Amendments, etc. Even the Commerce Clause and the Necessary and Proper Clause, properly understood and applied, protect liberties, and do not threaten them. Indeed many of the proposals being made by some of the lawyers supporting a COS to remedy problems, actually would undermine existing liberties.

The problem today with a runaway federal government is not the text of the U.S. Constitution. The problem is not the words of the Constitution, but the hearts of those who view themselves as our rulers, not our servants. They often act however they desire, regardless of the language of the Constitution. If they do not obey the words of the Constitution as written by the Founders, would they have greater regard for words of the Constitution as tweaked by the COS proponents? And if the problem is not to be found in the words of the Constitution, will the solution come from tweaking those words?

Lastly, should disputes arise about the rules by which a COS would operate - which rules the proponents assert would strictly limit what the Convention may do - who would resolve those disputes? Is it not likely that the U.S. Supreme Court would resolve such disputes? And if the proponents really believe the Supreme Court is totally corrupted, would it be likely the Supreme Court will allow power to slip through their fingers if they could avert the threat with just one more politicized decision? If improvements in the Constitutional text are not really possible, why should we be willing to assume the enormous downside risk?

False Premise 2. The only remedy to the problem of an out-of-control federal government is changing the Constitutional text.

Many of the proponents of a Convention of the States profess despair and hopelessness about the future of our nation. We do not share that fatalistic view.

Seven years ago, the Second Amendment was a dead letter, until rescued by Justice Scalia in the Heller v. District of Columbia (2008) decision. Then the Second Amendment was applied to protect against state infringement by Justice Alito in McDonald v. Chicago (2010). The scope of that protection continues to work its way through various courts, and USJF is involved in many of those cases. This is just one of the reasons that Gun Owners of America and the National Association for Gun Rights also oppose the dangerous COS proposal. It is much too early to despair about the Second Amendment.

Until three years ago, the Fourth Amendment had been emasculated over decades by the notion that it only protected a "reasonable expectation of privacy." However in U.S. v. Antoine Jones (2012), the GPS-on-the-Jeep Cherokee case, the U.S. Supreme Court returned the Fourth Amendment to its historic property basis - protection of "persons, houses, papers, and effects." This decision was followed in Florida v. Jardines (2013), the dog-sniffing door on the front porch case. Now, the Supreme Court has ruled that the basic protection of the Fourth Amendment is "property" based and that it can only be enhanced, not diminished, by "privacy" considerations. Other applications of this new doctrine are now working their way through the courts. Again, it is much too early to despair about the Fourth Amendment, for it too is being revitalized.

Proponents believe that it matters little who is elected to office. We disagree. That very notion is inconsistent with our experience, as well as rejecting the Scriptural truth that "When the righteous are in authority, the people rejoice; but when the wicked beareth rule, the people mourn." (Proverbs 29:2.)

The Declaration of Independence provides an important caution: "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." Indeed, prudence dictates that the states do not put at risk the best protection available for our liberties - at least, while evils are sufferable.

False Assurance 1. There is no danger of a Runaway Convention.

COS proponents assert that there is little, if any, risk of a "runaway" convention. Rather, the proponents assure that the convention will be a limited one, controlled by the participating States which will, in turn, be led by delegates who are committed to (i) downsizing the federal government and (ii) restricting the government to the exercise of enumerated powers, with revitalized states, as envisioned by the original Tenth Amendment.

Those who are supporting a COS badly misunderstand the risks involved. They believe that the process they are unleashing can be controlled and managed. Some of the individual proponents arrogantly believe they will personally play a dominant role in such a convention, and that they can control the process. They appear to believe that the same establishment powers which support and profit from big government in Washington, D.C. will just sit back and watch while their power is eroded by underfunded and largely unorganized forces supporting liberty. The "assurances" that these proponents have provided to state legislators about how such a process would unfold, if it is ever allowed to begin, are reckless in the extreme.

Proponents distinguish between a so called Convention of the States and a Constitutional Convention. They bristle when their proposal is called a call for a Constitutional Convention (Con-Con), denying their COS could turn into a Constitutional Convention. That claim is refuted by our own American history. Most of those who supported a meeting of the states in Philadelphia to consider amendments to the Articles of Confederation believed that the Convention had no authority to write a new document. Indeed, the Articles of Confederation expressly stated that it was based on a "perpetual" union and the Articles could only be amended by unanimous agreement of the state legislatures - language not in our current Constitution. However, the men who met in Philadelphia had other ideas. The U.S. Constitution was an entire rewrite of the Articles, its ratification was effective upon the agreement of nine of the 13 states, and ratification was to be in state conventions, not by the state legislatures. Given this historical precedent, there is no reason to belief that a COS could not do likewise.

Indeed, in principle, there is no fixed legal or political rule that would bind any COS, either express or implied. Any call for a COS will be conducted under the charter of the nation, the Declaration of Independence which recognizes the inherent authority of the people to constitute and reconstitute their government. Whatever limits on the power of the people are found in the laws of nature and of nature's God, not in any resolution or other limiting instrument devised by men.

False Assurance 2. One-quarter plus one of the State Legislatures can stop any bad proposals from being ratified.

The Constitution's Article V provides two methods of ratification of amendments - one by three-fourths of the state legislatures, and the other by three-fourths of conventions called in the 50 states. The Constitution provides that the initial choice is Congress's - not the COS. Thus, COS can give no assurance that one state legislature short of three-fourths can block any undesired amendment that might be forthcoming from a COS. If Congress should choose state convention ratification, then no state legislature would be in position to block any unwanted amendment.

Regardless of which ratification process is selected, or by whom, COS's promise that any, much less all, undesired amendments will be blocked is chimerical. There is no evidence that the convention process would be free from compromise that takes place in any legislative or convention body. It would not be unthinkable, for example, for there to be very strong support for an amendment to the First Amendment providing for complete government control of funding of election campaigns, strongly desired by liberals, which could be used as a bargaining chip for a balanced budget amendment, strongly desired by conservatives, giving way to a three-fourths vote ratifying the two. And, as was true of the ratification of the Bill of Rights, there is no legal or political barrier to separate out certain amendments from other amendments for ratification, and therefore, upping the risk that more than one bad amendment will secure the necessary three-fourths vote.

In short, the ratification process poses risks of its own, risks that COS proponents must downplay in a futile effort to provide any degree of assurance that no amendment opposed by the COS conservative leadership could ever be ratified.

For the forgoing reasons, the U.S. Justice Foundation urges State Legislatures oppose calling a Convention of the States.

U.S. Justice Foundation
932 D Street, Suite 2
Ramona, California 92065

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