Constitutional Convention: Levin vs. Schlafly and the Madison Coalition

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Mark Levin and Phyllis SchlaflyThe next session of Virginia’s General Assembly needs to pass important legislation as well as sending an amendment to the Virginia Constitution to the voters for ratification. This may be the most important priority in generations. And it might attract bipartisan support, so Republicans need to try it and not simply assume Democrats won’t be on board.

Battle of the Titans: Mark Levin vs. Phyllis Schlafly

• Mark Levin, insists: Amend the US Constitution independently from Congress by States calling for a Constitutional Convention, in his new book The Liberty Amendments.  This is the only pathway left, Mark Levin argues, to reverse the abuses by the Washington establishment. No, he doesn’t disrespect our Constitution, he says. But there are no other options left that can work. Levin rejects wishful thinking.

• “Hell no!” warns Phyllis Schlafly. “Can the Con-Con,”  Of course Phyllis Schlafly is also a giant, one of the founders of the modern conservative movement. A Constitutional Convention to amend the US Constitution can’t be controlled, attorney Phyllis Schlafly warns. A “runaway convention” will be abused by liberals to completely destroy our country, Schlafly has warned since the 1980’s.

• Now, a perfect solution has been developed by the Madison Coalition. Endorsed by former Governors George Allen and Bob Ehrlich and a growing list of conservative stars, the Madison Coalition, Roman Buhler has not only bridged the gap but done brilliant work solving the problems at both a constitutional level and at a practical level of implementation.

Danger Lurks in Article V of US Constitution

Our Founders built in a process to amend the U.S. Constitution in Article V, precisely to give more power to the people and to keep the Constitution and government on track. However, Article V is badly flawed.

There are two ways to amend the U.S. Constitution: Either the U.S. Congress can pass an amendment. Or the States can call a Constitutional Convention and bypass Congress entirely.

Obviously, Congress is not going to pass amendments that reverse Congress’ power grabs or restrain the sources of Congress’ abuses of power such as runaway spending and borrowing and excessive regulation. So, amending the Constitution becomes meaningless where Congress doesn’t want to restore power back to the people and the States at Congress’ expense.

But the process is deeply flawed for the States calling a convention. So it has never been used because it is so defective and full of danger. The Founders realized that the States needed to be able to bypass Congress. But they messed up. The State-called Convention was thrown in as a last-minute idea.

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Notice what is missing in Article V:

1) Nothing in Article V requires that delegates come from the States.

2) There are no rules on how delegates are chosen. Theoretically, Congress could call a Convention of liberal political hacks from inside the beltway, from academia, or liberal think tanks. People assume that a Convention would represent the States. But Article V doesn’t say that. Could a State Governor like Terry McAuliffe appoint his friends to a Constitutional Convention? Does the legislature appoint delegates? Will they be popularly elected?

3) States would not have to be represented equally.

4) A “runaway Convention” as Schlafly warns could completely rewrite our Constitution. If the State legislatures want an amendment about X, nothing in Article V that limits the Convention to the topic for which it was called. The Con-Con could even ignore the original topic that prompted it.

5) There is no guarantee that the Convention would follow any of the rules we expect, such as majority vote of the delegates, fair procedures.

6) Demagoguery of low information voters might sway States to ratify damaging amendments that sound good on a superficial level. The fear is that liberals are just waiting for the chance to rewrite our Constitution, if conservatives fall into the trap.

Madison Coalition Bridges the Gap with Ingenious New Solution

Happily, an ingenious new solution has been created by the “Madison Coalition.” This may be the last and only hope we have to save America. Here is the brilliant cure:

Any amendment to the U.S. Constitution must be ratified by two-thirds of the States, which is 34 States (rounding up). So if only 17 States say no, a proposed amendment cannot succeed.

So the plan is for 17 States (at least) to pass rules prohibiting ratification of a Constitutional amendment that does not meet certain standards and procedural safeguards. The Constitution leaves it up to the States how they handle the question of whether to ratify or reject an amendment. Therefore, A State can enshrine restrictions in the State Constitution prohibiting the State from ratifying any amendment that violates standards of fair procedures.

So we need at least 17 States to pass rules that the State will not ratify an amendment to the U.S. Constitution proposed by any State-called Constitutional Convention unless

  1. the amendment is on the topic for which the States called the Convention (preferably the exact same proposal), and resulted from a Convention where
  2. delegates were selected exclusively by the State legislatures,
  3. delegates represented the States equally,
  4. votes were fair and majority rule or even two-thirds majority,
  5. procedures followed Roberts Rules of Order and
  6. possibly other safeguards.

If only 17 States enact these safeguards, a runaway convention becomes impossible. We can find 17 States which are governed by Republicans and/or conservative enough to do this.

Virginia General Assembly Should Act Promptly

Can this be done by legislation or must it be put in the State Constitution? It is worth passing legislation on the above. However, theoretically a future legislature could over-rule a previous legislature, and waive the restrictions. So legislation would be good. Restrictions in the State Constitution would be better. The Madison Coalition urges legislation by States governed by Republicans right away. But amending the State Constitutions is preferable.

Also, the Madison Coalition urges States to pass simple legislation requiring that any delegates sent from the State to a Constitutional Convention are legally bound to vote only on the amendment originally proposed by the States when calling the Convention. So if a delegate tries to support other amendments – a runaway Convention – the delegate can be legally removed and replaced by the State sending the delegate.

Virginia’s filing deadline to put bills in the hopper for the upcoming January 2014 session is approaching fast.

Republicans should not assume that Democrats will reject this.

Jonathon Moseley

About Jonathon Moseley

Jonathon Moseley supports his political habit as a Virginia business and criminal defense attorney. Moseley is a co-host with the "Conservative Commandos" radio show, a member of the Northern Virginia Tea Party, and Executive Director of Americans Against the Obama Agenda. He spent 5 years at the U.S. Department of Education -- "the Lost Years" -- including at the Center for Choice in Education. Moseley worked at High Frontier and the Center for Peace in Freedom promoting Reagan's anti-missile defense plans. He studied Physics at Hampshire College, earned a degree in Finance from the University of Florida and a law degree from George Mason University in Virginia.