Sunday, December 14, 2008


Guest column by Glenn Neal, retired-attorney-turned-writer

A website is raising the alarm in an attempt to stop the Ohio legislature from voting for a Constitutional Convention for the United States in the fear that it will become an open convention.[1] Their fears are unfounded. Article V of the Constitution permits the states to demand "a Convention for offering Amendments . . . [to] this Constitution" [emphasis added], and nothing more. Reinforcing that limitation is a law passed by Congress that the convention cannot consider anything that is not in the call for the convention. You can be sure the people in power will not give up any unless you strictly follow the letter of the law.

I could not confirm that thirty-two states have called for the convention--Google "constitutional convention" and you will come up with 448,000 hits. Do a Google search on "con con" (an abbreviation in the blogosphere for constitutional convention) and get 138,000,000 hits. Obviously, I did not check all of the sites. I'll continue to research this. It may be the subject of a future post.

What I did find is several states have proposed a convention for amending their own state constitutions; Illinois in particular is in the news right now because of Governor Blagojevich's arrest. And there are countries like the Philippians who want to amend their national constitutions.

Nonetheless, this provides an excuse for me to put in my own 2¢ worth: a convention to propose just a balanced budget amendment would be a horrendous waste.

U.S. Supreme Court Justice Louis Brandeis, dissenting in Olmstead v. U.S. (1928), wrote,
Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.

The balanced budget amendment is an important amendment but so is term limiting Congress; a more vital amendment is reigning in the unlimited power of the United States Supreme Court.

In the year 2000, Justice Scalia stated in his dissent in the Dickerson case that the Supreme Court had given itself the power to amend the Constitution. The only remarkable thing about Dickerson is the Court came out and openly stated (in lawyer-speak, of course) that it could amend the Constitution. In fact, it had been covertly amending the Constitution at least since the Warren Court of the 1950s.

It will never be possible to amend the Constitution fast enough and often enough to keep up with an illegitimate, activist Supreme Court. Of some ten thousand amendments proposed during the history of this nation, only twenty-seven have been ratified to become a part of the Constitution.

If several amendments compete for the public's attention, it diminishes the probability that any one of them will be adopted. Instead, the people should unite in support of a Convention for offering amendments under Article V. of the Constitution.

When the Supreme Court seized power in Marbury v. Madison (1803), the people, acquiesced and allowed it to happen. But the country still belongs to the people. The idea that this is a government "of the people, by the people and for the people" did not die when Abraham Lincoln was shot.. We can still do something about it.

The Constitution does NOT give the Court the right of judicial review (overturning an Act of Congress) nor does it give the Court the power to amend the Constitution. See, U. S. Const., Art. V here: In drafting the Constitution the founders considered, and specifically rejected, the notion that the Court could overturn an Act of Congress. Nonetheless, the Court seized that power in Marbury v. Madison (1803).

We need to take the power back.


Anonymous said...


Glenn Neal said...

Response to Anonymous:

I read and immediately saw the flaw in your argument. The site aggregates amendment requests without regard to time or subject matter.

Whether lawful or not, Congress has passed legislation requiring that all calls (1) have the same subject matter, and (2) all must be received within a narrow time limit--I believe it is 7 years.

I don't believe that Congress has the power to place limitations on Article V; however, they have in fact placed such limitations. We need to coordinate the requests for a convention put forth by the state legislatures insuring that there is subject matter agreement in the calls and that all are received by Congress within seven years after the first one is enacted by the states.

If we ignore Congress' law, Congress will simply ignore the calls for a convention--as it has been doing for years.

Maria Hsia chang said...

Follow-up comment by Glenn Neal to Anonymous:

If you are dealing with courts, which do not have your interests uppermost in their minds, you must do everything by the book--dot all the "I's" cross all the "T's" and follow any other cliches you can think of.

If you are legally right, but procedurally wrong, you will lose.

Courts are fanatics about proper procedure and so is Congress. That is why the Supreme Court will not be sympathetic to advancing the Article V convention unless you comply with the law.