Letter to the Editor

'Constitutional convention' is attack on Constutution

Monday, January 28, 2019

Dear Editor,

Sen. Halloran of Hastings introduced LR 7, a “call” for a constitutional convention for the purpose of amending the U.S. Constitution. They say it is not a “constitutional convention.” According to Black’s Law Dictionary, a Constitutional Convention is “A duly constituted assembly of Black’s Delegates or representatives of the people of a state or nation for the purpose of framing, revising or amending its constitution.” So, LR 7 IS a constitutional convention.

In a video presentation on March 15, 2014, Robert Kelly General Counsel (attorney) for Convention of States revealed such a call for the Article V convention is a very broad call. Kelly specifically said all sections of the constitution including Article V could be opened. LR 7 is not a limited call even though they claim it is limited to stopping the over-reach of government, ending over-spending and placing term limits on Congress and Supreme Court Justices. Experts say a convention can’t be limited.

What do experts say? Former Chief Justice Warren Burger said “there is no effective way to limit or muzzle the actions of a Constitutional Convention” than the Continental Congress could control the convention in Philadelphia, to put a muzzle on a Constitutional Convention. Once it meets, it will do whatever the majority wants to do. I would not favor it.”

In 2014, Supreme Court Justice Antonin Scalia said, “I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?” Nov. 2, 1788, Madison said he “trembled” at the prospect of a 2nd convention; “the most violent partizans — individuals of insidious views — would strive to be delegates and would have “a dangerous opportunity of sapping the very foundations of the fabric” of our Country.

Congressional Research Services document (2014) states while the Constitution is silent on the mechanics of an Article V convention, Congress will no doubt establish “procedures to summon a convention” determining the number and selection process for its delegates.” Proponents of LR 7 say Congress is the problem now. If they are the ones calling the shots, what would a convention change?

In 2016, some constitutional scholars maintain “the convention is possessed of sovereign powers and therefore is supreme to all other Government branches or agencies.” (If that is the case, Delegates would not be accountable to the Legislature or anyone else!)

Article 1, Section 8, Clause 18 of the U.S. Constitution, gives Congress the exclusive authority “to make all laws which shall be necessary and proper for carrying into execution” all powers granted to Congress by the Constitution. This includes Congress’ power to call the convention (see Article V). Only Congress has the authority to establish these rules.

Help protect our Constitution by sending your written testimony before 5:00 p.m. 1/31/2019 to Sen. Tom Brewer, chair of the Gov’t, Military & Veteran Affairs Committee at tbrewer@leg.ne.gov saying you oppose LR 7. Ask that your statement be entered as testimony at the hearing! Include your name and address. Don't let our Constitution be opened and subjected to the special interest groups that are trying to divide and destroy our Nation. Thank you!

Kathy Wilmot

Beaver City, Neb.

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  • Amending the Constitution is not an attack on it, unless the Bill of Rights destroyed the document. Ms. Wilmot seems confused as to whether or not the convention as provided in the Constitution is subject to the rules of the Constitution. She begins quoting “experts” who say it cannot be muzzled, then says Congress can muzzle it, and that’s the actual problem. Which is it? What rule does she fear Congress making? What justifiable procedural rule could alter the mandate given to the convention by 2/3 of the states, and why does Ms. Wilmot believe the Founders has not accounted for rules in the framing?

    Opposition to the convention requires reverence of the Constitution and mistrust of it. We must preserve it as sacrosanct, but we can’t use the only “states right” enumerated in the document. But the peer-reviewed reports all say the convention can be limited. Justice Burger might have been a great jurist, but that doesn’t mean he knew anything about the convention. An orthopedist may be a fantastic doctor, doesn’t mean they know anything about neuroscience. Burger doesn’t give any analysis of the legal or constitutional history surrounding the convention, while the DOJ identifies four protections from a runaway convention. Why are these protections insufficient? What do you need, the actual hand of God in the courtroom?

    In contrast to Burger, Scalia states in the full quote of the fragment provided by Ms. Wilmot that a targeted amendment convention would be a good idea, and further he has studied how few people it would take to stop an amendment and the process is too hard, not too easy. Scalia supported the amendment convention, and taking one sentence from his quote, twisting it to prove your point, is pretty low.

    For actual studies on the convention process for amendment, go to www.wolf-pac.com/resources

    -- Posted by MattCox on Mon, Jan 28, 2019, at 8:05 PM
  • *


    1.) An Article V convention will not address the root cause of the problem:

    For more than a century the federal and state governments have willfully ignored our Constitution. It is absurd to believe that federal usurpation would cease by amending the very document they have habitually violated. The problem is not with our Constitution, but in our ignorance of its content and indifference to its enforcement.

    2.) The Constitution and the federal government it established are creatures of the several sovereign States, and of We the People. Therefore, it is the duty of The People to enforce the Constitution, and to constrain their government to the enumerated powers defined in that Constitution.

    No process of amendment has the power to secure The People, when they themselves have forsaken wisdom and virtue. We abdicated our duty in favor of accepting the chains of the welfare state. Our abandonment of that responsibility cannot be rectified through an amendment process or the drafting of a new constitution.

    3.) Honesty compels us to admit that our federal and state governments are staffed with incompetent, morally bankrupt individuals. Given the opportunity of an Article V convention, these rogues would select delegates.

    4.) There is no standard for an Article V convention. Therefore, it is unrealistic to suppose that the structure, rules and limitations of a 21st century version would mirror the practices that governed the convention of 1787.

    5.) The States have no say in choosing delegates to an Article V convention.

    Two methods exist for invoking Article V: Congress proposes amendments – this method governed the existing 27 Amendments. Congress “calls” a convention to propose amendments, if 34 States make the application.

    Under Article 1, Sec. 8, the “Necessary and Proper Clause” – Congress is delegated the power to make laws to carry out “the call,” as to the date and location of the convention, and the manner in which delegates shall be appointed.

    On 7 March 2014, the Congressional Research Service (CRS) released a report to instruct Congress on the legalities of Article V. They confirmed that Congress has exclusive authority over both methods, and has power to provide delegates immunity from arrest and prosecution. Congress may apportion delegates based on one vote per state, or base on the Electoral College. Under the electoral form, California would be apportioned 55 delegates, Nebraska would receive five. Congress could appoint delegates, or even appoint themselves as delegates. Nothing in the Constitution requires Congress to allow the States to select their own delegates.

    6.) The states will have no control over the proceedings of an Article V convention.

    When the Continental Congress called for a convention to be held in Philadelphia (21 February 1787) – “for the sole and express purpose of revising the Articles of Confederation” – they lost all control once the convention began. It was held in secrecy, the limitations set by Congress ignored, and a new constitution was written. The inherent authority of the delegates makes it impossible to prevent a recurrence of this outcome.

    7.) Proponents of an Article V convention cannot know, nor control, how the convention would function.

    Page 25 of the CRS report stipulates “In the final analysis, the question ‘what sort of convention’ is not likely to be resolved unless or until the 34-state threshold has been crossed and the convention assembled.” This is reminiscent of Nancy Pelosi’s infamous Obamacare quote: “But we have to pass the bill, so that you can, uh, find out what is in it, away from the fog of the controversy.” In other words: We cannot know how the convention will operate, until we call for the convention – and, by that time, it’s out of our hands.

    8.) The Constitution, in its present form, sets limits on the scope of federal powers; so, on what basis do proponents of an Article V convention contend to “fix” that which already exists? (See Reason 1)

    Since Woodrow Wilson, unconstitutional federal agencies have created a regulatory code whose reach extends government power far beyond the scope delegated by Article 1, Section 1 of the Constitution. What Article V advocates propose does not constrain this usurpation, but rather legitimizes those abuses that already exist.

    For example, Mark Levin proposes an 'Amendment to Limit the Federal Bureaucracy.' However, the litany of existing federal “alphabet” agencies – all in violation of Article 1, Sec. 1 – are not eliminated, and therefore legitimized.

    Mr. Levin also proposes an 'Amendment to Limit Federal Spending,' by creating a “budget” to replace the enumerated powers of Article 1, Sec. 1. However, the amendment permits Congress to suspend the spending limit - and thus continue to raise the national debt. In that context, to what purpose does this amendment serve?

    9.) Just because the Constitution is being routinely violated by a lawless federal government does not make it any less the Supreme Law of the Land.

    Should ‘We the People’ be foolish enough to allow mischief under the authority of an Article V convention, opportunists will waste no effort to “alter or abolish” our present form of government – one whose constitution is unique in all of human history. We shall then no longer possess that bulwark of supreme law, which had, until our waning stewardship, reliably thwarted the designs of unscrupulous men.

    When faithfully interpreted in the light of its original intent, and aggressively enforced, the Constitution is capable to arrest such machinations – yet, incredibly, we are now considering whether to surrender its efficacy to the very forces that have long advocated and labored for its demise.

    Insofar as the Supreme Court has distorted essential clauses – Interstate Commerce, General Welfare, and Necessary and Proper – the Federalist Papers (Hamilton, Madison and Jay) are sufficient to clearly and concisely define the Founders’ original intent.

    10.) Proponents of the Article V convention would have you believe that the States are victims of federal usurpation; but nothing could be further from the truth.

    The States surrendered their power when they ratified the 17th Amendment. In acquiescing to the siren song of “we’ll eliminate corruption,” and preferring that federal senators be elected by popular vote rather than by their State Legislatures, the “reformers” eviscerated the 10th Amendment. Today, most States have more than 1/3rd of their annual budget padded with federal dollars - and all the attached strings.

    In truth, the States surrendered their sovereignty in exchange for a perpetual suck on the federal nipple; and thus, they are not victims of federal tyranny, but collaborators.

    11.) We must distinguish between defects in a constitution, and a government’s refusal to obey the constitution.

    Contrary to the propaganda of the Article V proponents, amendments to the Constitution were never about correcting federal usurpation. The signers specifically stated that amendments were meant to remedy defects; that “amendments of errors, and useful alterations, would be suggested by experience; that the novelty and difficulty of what they were doing would require periodic revision; that useful amendments would address the organization of the government – not the mass of its powers.”

    The remedy to the problem is not that we need a new constitution, but rather that we require resistance to and nullification of unconstitutional laws.

    12.) We must recall that, in the case of a constitutional convention, the delegates are invested with the inherent sovereign “right of the people to alter or abolish their form of government.”

    In his letter to Phyllis Schlafly (22 June 1983) Chief Justice Warren Burger warned: “… [T]here is no effective way to limit or muzzle the actions of a Constitutional Convention. The convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or to one issue, but there is no way to assure that the convention would obey. After a convention is convened, it will be too late to stop the convention if we don't like its agenda. …Whatever gain might be hoped for from a new Constitutional Convention could not be worth the risks involved. A new convention could plunge our Nation into constitutional confusion and confrontation at every turn, with no assurance that focus would be on the subjects needing attention.”

    In his letter (2 November 1788) to G.I. Turberville, James Madison sated: “If a General Convention were to take place for the avowed and sole purpose of revising the Constitution, it would naturally consider itself as having a greater latitude than the Congress appointed to administer and support as well as to amend the system; it would consequently give greater agitation to the public mind; an election into it would be courted by the most violent partizans [sic] on both sides; it would probably consist of the most heterogeneous characters; would be the very focus of that flame which has already too much heated men of all parties; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric.”

    In Federalist No. 16, Alexander Hamilton stated that “… [T]he people … [are] the natural guardians of the constitution.” I am thus compelled to repeat my opening remark – The problem is not with our Constitution, but rather in our ignorance of its content and indifference to its enforcement.

    With all that has gone heretofore to bring us to this point, are we so vain as to imagine ourselves sufficiently wise to risk our liberties to those we dare suppose would do better than the esteemed men who, 242 years past, vowed to each other their lives, their fortunes and their sacred honor? Is there now counted among are contemporaries a Washington, a Jefferson, a Madison, a Hamilton, or a Jay? I must candidly reply in the negative.

    For these reasons, I raise my voice AGAINST LB451 and AGAINST LR7. Furthermore, I will steadfastly oppose any attempt to convene an Article V convention.

    Bruce C. A. Desautels

    Stratton, Nebraska

    -- Posted by Bruce Desautels on Mon, Jan 28, 2019, at 10:00 PM
  • Read again carefully MattCox. Burger said it is the constitutional convention that cannot be muzzled (where did you see anything about Congress being muzzled or doing any muzzle-ing?) As for Congress: People wanting a convention say over-reach of Congress is the problem...but if Congress is picking delegates, deciding how many, etc., What will a convention fix? That is the proverbial "fox watching the henhouse".

    There are two way to amend the Constitution: one way has been used 27 times but now proponents want to use the convention method that has never been used except in 1787. Why not use the method we know is safe?

    Interesting that you point readers toward a Wolf-PAC link. Most proponents want to deny that Soros is connected to this convention movement. But, sure enough, there are long-standing connection between George Soros, Cenk Uyger and Wolf-PAC. I suggest that readers check out Move to Amend that lists other groups that support your desire for a convention: Code Pink, Sierra Club, all sorts of Occupy groups and many, many more.

    It might also be good to mention the millions of dollars the Koch brothers have given to Convention of States Project to help fund this nation-wide push for an Article V constitutional convention. It really gets interesting when you do legitimate research.

    -- Posted by Kathy Wilmot on Mon, Jan 28, 2019, at 11:27 PM
  • 1. Ms Wilmot: There is no funding that Wolf-PAC receives from Mr. Soros or from any billionaire. The group was founded by Cenk Uygur, whose Young Turks network was part of a media consortium several years ago, and Soros gave some funding to some members of that consortium, but not to The Young Turks nor to Uygur personally, and he does not give funding to Wolf-PAC (beyond maybe a small monthly donation of a couple hundred dollars), and he is only tangentially related to the day-to-day operations of Wolf-PAC. Wolf-PAC's yearly intake, as is public record, is a bit under half a million dollars. They are not getting funded by any special interest group, the money comes almost exclusively from small donations. Convention of States may be funded differently, so that claim may have validity, but for Wolf-PAC it has none. And while these two groups each want an Article V Convention to address their own issues, there is no particular connection or coordination between these two organizations, and probably very few if any joint members of both.

    2. I don't see the connection between "Congress choosing how many delegates go to a convention" and "the topic discussed at the convention, the amendment proposed, or the ability of that proposal to solve the problem at hand." So Congress might send 50 delegates (one from every state), or 10 from every state, or might send a proportional amount by population. I'd imagine that the language of the proposed amendment might change depending upon the predominant ideology of those who can attend, but how does that make you conclude that they reflexively will offer the same lack of solution as Congress does? Maybe a different body of people, with no other factors involved, would come up with a better solution to the issue than Congress has (or could). Maybe the delegates, being closer to the ordinary lives that most people led, and free from the bubble and the corruption of Washington, would be able to see things in a better perspective than Congress. That would be an example of "what a convention would fix." It would determine a more suitable / workable / fair / just amendment than Congress would, and thereby have a better chance of fixing the problem at hand. The fact that Congress would be setting the instructions for this new machine doesn't in any way mean that the machine would definitely emit the same answer that Congress would have done on their own.

    3. Wolf-PAC supports all paths for our issue: campaign finance reform. The problem is that some of the greatest beneficiaries of the corruption of special interest money in political campaigns are the members of Congress themselves. Given that Congress has not passed a single amendment (on any issue) into law since 1970 (the 27th Amendment was 200 years old), it is sufficiently unlikely to conclude that they will foreseeably pass an amendment that could threaten their existing, established funding sources. They attained their power in this system, they have no incentive at all to change it. In such a case, closing off the only other path to an amendment is basically saying "we will never fix this problem, because the people who could fix it will never act to do so." State laws allowing campaign finance limits have been struck down by the Supreme Court in recent years. State referendums have been overturned. Bills for a Disclose Act have failed. There simply is no safer path, there is no better way. It is the equivalent of saying "I know the boat is sinking, but we can't swim for the shore, because there may be sharks in the water." Give us some real alternative if you find this alternative to be unthinkable. Wolf-PAC doesn't necessarily agree with the specific policy goals of the Convention of States (Wolf-PAC is non-partisan and doesn't lobby on behalf of ideological issues, just on behalf of campaign finance reform). But Wolf-PAC agrees with the principle of using all mechanisms in the Constitution to achieve change, and Article V's two separate paths exist there for a reason. Convention of States' ideological mission should be fought, if it is, on the merits, not on the process, just like surely you wouldn't strip someone of a right to vote even though sometimes people vote for things you find abhorrent. You wouldn't strip a Congressman of the right to propose an amendment even if you thought that amendment was a horrible one. A convention is just another tool.

    -- Posted by Talbot on Tue, Jan 29, 2019, at 1:09 AM
  • *

    RE: Talbot, MatCox ...

    Neither of you see the prudential point at the center of this controversy, which both myself and Ms. Wilmot have expressed:

    If you elect to convene an Article V Convention, then the Constitution - IN ITS ENTIRETY - is opened for whatever changes the assembled delegates will see fit to impose. There is no avenue by which the Congress or the individual State Legislatures may or can use to intervene, challenge, mitigate or stop such occurrence. That is the lesson of the Convention of 1787. The delegates, by the nature of their inherent powers, are vested with the authority to change any part of Constitution, or all of it - including the Bill of Rights. Moreover the States have absolutely no say whatsoever in the process of selecting those delegates.

    How is it that neither of you two gentlemen understand that the ideological forces arrayed for this cause will not limit their work to "campaign finance reform" (which, Mr. Talbot,not withstanding your arguments, is not so pure in its motives you would like us to believe), nor to any other supposed model of restoring this government to the original intent of the founders?

    The Constitution, as presently written, is quite sufficient to do the job - if it were enforced by the States and the People thereof. As I previously wrote, the States themselves put us in this position - by their ratification of the 17th Amendment, their neglect of the 10th Amendment, their refusal to use nullification, and their willingness to yield sovereignty in exchange for federal dollars.

    Corruption, incompetence, indifference, ignorance, greed and cowardice - in both the public and private spheres -lie at the heart of this problem. Those defects are as much the fault of the people as they are of the government empowered by them. No Amendment, however noble in its intent, however wise in its design, can even hope to restore liberty to a people who have abandoned virtue and the concomitant precepts that make self-governance possible. In that context, opening our Constitution to ideological or partisan mischief, which would invariably ensue through an Article V convention, will neither alleviate nor remove its perceived defects; rather, such an action will all but guarantee the destruction of this republic as it was founded.

    -- Posted by Bruce Desautels on Tue, Jan 29, 2019, at 3:18 PM
  • Ms. Wilmot knowingly or unknowingly is perpetuating decades old fears regarding a federal convention.

    "If they are the ones calling the shots, what would a convention change?"

    Here's what would change: Congress would be made to provide for the formal discussion of amendments. At present all the American people are allowed is the informal discussion of amendments--an informal discussion that has been going on for over a century.

    One of the first things to happen once the convention is called, is thousands of Americans like you and I will be on the phone to their state legislators asking who gets to be delegate. In other words, the nation will re-engage and begin formally building consensus as to what can be agreed on at this late date.

    Also, unbeknownst to many, the requirement of 75% approval for ratification is a political principle which mathematically precludes partisan amendments from becoming high law. In other words, post-convention, either the status quo will improve or remain the same.

    For those who think things could become worse via the Article V Convention they don't seem to understand history--neither short term nor long term. Long term history is the reason the convention clause was placed into the Constitution, because all governments instituted become corrupt at some point and need to be formally addressed. Short term, because those in power have virtually everything they need to do what they've been doing for a good thirty years, i.e. conditioning the populace to accept their rule.

    So here we are at a historic moment where formal discussion about amendments needs to take place, where it can happen in only two places (Congress or convention) and Ms. Wilmot is advocating against a convention, which of course places the discussion in the hands of Congress. That said, the convention clause of Article V has been satisfied by the states many times over, which means that Anti-Conventionists like Ms. Wilmot is advocating for the overthrown of our constitutional form of government by unconstitutional means.

    Every single one of the fears surrounding the Article V Convention are easily refuted and shown to be not only irrational but illogical.

    In regards to the Burger letter and Scalia quote, here is research refuting them: http://www.foavc.org/Pages/Page_Six_E.htm

    -- Posted by JohnD1965 on Thu, Jan 31, 2019, at 11:37 AM
  • *

    For the opposing arguments to those made by JohnD1965, please see the following:

    This informative 59-minute video presentation, by Robert Brown, has four parts:

    (1) 4 Conflicting Approaches;

    (2) What Article V Really Says;

    (3) The 1787 Precedent — 3 Indisputable Facts; and

    (4) Conclusion.

    This video provides an up-to-date analysis of the Article V convention issue. It is especially useful for informing state legislators on the reasons why all Article V convention applications should be rejected.


    -- Posted by Bruce Desautels on Thu, Jan 31, 2019, at 1:56 PM
  • Bruce Desautels, you and all Anti-Conventionists place the Constitution in jeopardy by framing the Article V Convention as a crap-shoot, when all it does is begin the formal discussion of amendments. 75%+ approval is a political principle which mathematically precludes partisan ideas from ever becoming law. The Article V Convention process will re-educate two or three generations of Americans in one fell swoop, because for two or three years after the convention, Facebook/Internet will be lit up with Americans expressing favor or disapproval of proposals. America will be discussing what's in the Constitution, why, and what else needs to be added to it. That is how we're supposed to roll here in the USA. What would Anti-Conventionists have us do? Wait for Congress to propose needed amendments?

    -- Posted by JohnD1965 on Fri, Feb 1, 2019, at 9:42 AM
  • Bruce, have you read any of the reports from the DOJ, ABA or CRS? Legal and constitutional scholars prove a limited convention is the purpose of an AVC. The Convention Of 1787 was a meeting between sovereign nations, not a convention called under the authority of the Constitution, therefore the “lesson” we should take from it is that it is not analogous to any convention under the authority of the Constitution of a Republic.

    Wilmot, I find it interesting that you think any connection between Soros and Uygur is relevant, unless you believe Soros funded the ABA when it produced its 1976 report, or the DOJ in 1987, or the CRS in 2012 or any other document included in the resources. This is nothing but scaremongering to sow doubt in the Constitution, which governs the convention that it provides. If you think the Founders didn’t have the foresight to provide limitations to the convention (and Madison and Hamilton both claimed they did in Federalists 43 and 85), I wonder why you are interested in preserving the Constitution at all. If it can’t be trusted, what good is it?

    Do the “legitimate research” of reading the reports. Or just accuse everyone you disagree with of having once been in the room with Soros’s father’s brother’s third-cousin-twice-removed’s ex-roommate. I’m sure it makes sense to believe Soros is funding a movement to take away his ability to fund movements.

    -- Posted by MattCox on Fri, Feb 1, 2019, at 2:48 PM
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