before the Texas Select Committee on State and Federal Power and Responsibility
in opposition to HJR 77
Calling for an Article V Convention
March 12, 2015
I am the Founder and President of the
Constitution Society, website at //constitution.org.
I urge the Texas Legislature not to adopt HJR 77, or similar
proposals, to call for a convention under the terms of Article V of
the Constitution for the United States. I share most of the concerns
of its proponents. They hope an Article V convention might bring a
solution to these problems. It will not, and it presents a real
danger of making the situation much worse.
It doesn't work to demand a remedy without providing the exact language of that remedy. Lawyers learn, perhaps the hard way, that filing a petition with a court and arguing for relief can lead to disaster, even if the judge decides in one's favor, if one doesn't draft the order for the judge to sign. If the judge drafts it, or even worse, accepts the wording provided by your opposition, you may get a "win" that is really a loss.
The repeated mistake of reformers is not to demand the exact language of the reform instrument. A vague demand to others to "do something" for you will get those others to do something to you.
What if a constitutional convention is held and it is our adversaries that control it, and perhaps control enough of the state legislatures as well? Be careful what you ask for. The proponents won't be among those who go to the convention.
See the attached Draft Amendments to U.S. Constitution. The best approach is not to first call for a constitutional convention, but to get task groups, perhaps including state legislators, to develop carefully designed proposals and then get many states to propose to Congress the exact identical language of these proposals from each state, then demand that Congress adopt them and send them to the states for ratification. This process would not run the risks of a constitutional convention, which could completely replace the Constitution with one that would not protect our rights, and then provide for ratification of it by a process other than that prescribed by Article V.
The attached proposals are designed to focus and specify our demands for reform by putting each into specific language. The “clarifying amendments” would mainly overturn court precedents misinterpreting about 80 ambiguous terms in the Constitution. They could be effective in bringing reform even if not actually be adopted as amendments. They could pressure changes in practice by legislators, judges, and executive officials.
However we approach reform, if we want the Constitution interpreted differently than it is now being interpreted by judges and other officials, we have to unite in stating the exact language of how we do want it interpreted, and build a movement that can overcome resistance by Congress and other “reliance interests”. A one-shot Convention won't do that, and it would certainly not be able to actually draft competent amendments during the Convention. There are fewer than 200 persons in this country with the knowledge and skill to do that, and none of them will be delegates.
I urge this Committee to substitute
language in the attached proposals for that of HJR 77, and resolve
that Congress adopt them and send them back to the states for