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The States Must Protect America's Cherished Constitutional Republic

Guest Commentary · Jan. 17, 2019

By Paul S. Gardiner

Many Americans are very concerned about the future of their country. Reasons for this concern include the stark political differences over building a wall to protect America’s southern border, the highly vocal political divide between liberals and conservatives, and the accelerating movement of the Democrat Party to embrace and espouse leftist, socialist values and policies.

Rising-star performers in the evolving socialist Democrat Party include U.S. House Reps. Alexandria Ocasio-Cortez and Rashida Tlaib, and Beto O'Rourke, who came close to beating Sen. Ted Cruz in the recent Texas Senate race. An example of how leftist politicians feel about America’s founding documents and principles are Beto O'Rourke’s recent remarks in an interview with The Washington Post where he stated, “Can an empire like ours … still be managed by the same principles that were set down 230-plus years ago?”

For Americans who hold dear the U.S. Constitution with its system of “checks and balances” and prescription for limited government, especially a limited national (federal) government, there is adequate reason to believe that many parts of the Constitution will come under greater and greater attack by leftist politicians and, yes, leftist-leaning judges. Further, the rising interest in socialism among the so called American coastal “elites” and millions of young people (voters) in the Millennial generation is well documented and is a significant threat to America’s constitutional freedoms and liberties.

No longer is it inconceivable that a leftist, socialist candidate such as Beto O'Rourke could become president along with a leftist-, socialist-controlled House of Representatives and Senate. Envisioning such a future development, what needs to be done in the near term (next two to three years) to protect and secure America’s constitutional republic that has worked so well and blessed so many people for 230 years?

In recent years, numerous publications and personalities have explained how America’s state governments can restore the vision of the Founders regarding the balance of governing power and jurisdiction between state governments and the federal government. The Founders intended for the new federal government to have very limited power and for the state governments to have a course of action against the federal government should it abuse its powers or overstep its intended limited powers. This course of action is contained in Article V of the Constitution, and it gives authority for two-thirds of the state legislatures (34 legislatures) to require Congress to call for a convention of states (COS) to propose amendments to the Constitution.

As explained below, amendments proposed at an Article V COS could do much to protect America’s constitutional republic from attacks by leftist, socialist politicians and organizations. As with amendments proposed by members of Congress, amendments proposed at a COS would eventually have to be ratified by three-fourths of the state legislatures (38 legislatures) in order to become part of the Constitution and the law of the land. The Founders intentionally made it very difficult to add to or change the Constitution — since the Constitution became the law of the land in 1789, only 27 amendments successfully have been ratified, whereas over 11,500 have been proposed!

Regrettably, much misinformation has been spread and much misrepresentation has been made about the conduct and risks associated with an Article V COS. The bulk of these arguments revolve around the fear of a “runaway” COS wherein a majority of the delegates from the attending state legislatures might propose amendments that could do much harm to the Constitution and existing amendments and even result in an entirely new constitution being proposed.

The above fears can be allayed by the following facts: (1) The actions of delegates to a COS, including their authorities to propose and/or vote on various amendments, can be tightly controlled and restricted via the delegate commissioning process established by each state legislature. For example, delegates could be prohibited from proposing or voting on any proposed amendment that degrades or changes any existing amendment such as the 1st or 2nd Amendment. (2) Delegates can be subject to immediate recall and fines and/or prosecution if they act outside their authorities. (3) Based on historical meetings of state legislators, each state delegation to a COS will only have one vote regarding proposed amendments.

Amendments that could be proposed at a COS include: (1) an amendment that gives override power to a super majority of state legislatures over any egregious/financially burdensome federal law, policy, or court ruling; (2) an amendment to require a bona fide balanced federal budget with penalties for members of Congress who fail to abide by budget limitations; and (3) an amendment that limits total years served for members of Congress and certain other federal officials.

There are now over 10 different Article V citizens groups advocating for state legislatures to call for a “limited” COS to only propose one particular amendment or amendments pertaining to only limited subject areas. However, several leading constitutional scholars such as Michael Stokes Paulsen, Charles Black, Walter E. Dellinger, and Russell Caplan all agree that Congress cannot call or sanction a limited COS where delegates do not have the same freedom and discretion to deliberate any and all amendments in the same manner as members of Congress. A “general” COS, allowing all proposed amendments to be deliberated and voted upon, appears to be the most defendable and feasible approach. In fact, if Congress did call for a limited COS and it was challenged in court (as it most likely will be), a majority of “originalist” Supreme Court justices could rule such an action by Congress to be unconstitutional.

As indicated above, at least four leading constitutional scholars believe that Congress only can call for a general COS, and there is only one Article V citizens group advocating for a general COS: the newly formed American Constitution Foundation (ACF), a 501(c)(3) organization.

Readers are encouraged to learn about ACF by studying all the items under the various tabs on its website. This is an organization that needs to be fully supported by all citizens desiring to protect and preserve America’s cherished constitutional republic!

Paul S. Gardiner is a retired Army officer, graduate of the Army War College, avid lover of America, and resides in Hoschton, Georgia.

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