Dana Milbank’s article two days ago, “Mormon Prophecy Behind Glenn Beck’s Message“, talks about some coded language Beck’s been using–supposedly a prophetic prediction made by the founder of Mormonism, Joseph Smith.
“The phrase is often attributed to the Prophet Joseph Smith, founder of the Church of Jesus Christ of Latter-day Saints, or Mormon Church. Smith is believed to have said in 1840 that when the Constitution hangs by a thread, elders of the Mormon Church will step in — on the proverbial white horse — to save the country.”
“When the Constitution of the United States hangs, as it were, upon a single thread, they will have to call for the ‘Mormon’ Elders to save it from utter destruction; and they will step forth and do it,” Brigham Young, Smith’s successor as head of the church, wrote in 1855.”
Hanging by a thread. Sounds like the sign of the times in so many ways. We all know profit-driven ‘news-entertainment’ is dominated by fear and sensationalism, so we should expect an abundance of apocalyptic story telling from pundits like Beck. But even after disregarding the truth-warping profit motive, there is still ample evidence to heed this ‘constitution hanging by a thread’ notion. Accordingly, the people are restless.
In a recent poll by People for the American Way, 95% of those surveyed believe corporations spend money on politics to buy influence and elect people favorable to their financial interests. Further, 85% of voters say that corporations have too much influence over the political system today, while 93% say that average citizens have too little influence.
This is not the “government of the people” the Founders and Framers envisioned–well, not really.
The Founders actually did envision the current state of the nation. They could foresee an intractable situation befalling the Republic in which undue influence and corruption would become so entrenched into our political institutions, that elections–or any actions taken by the Federal Government–would be incapable of correcting America’s biggest problems. Sound familiar?
What the designers of our constitution foresaw was the distinct possibility that the same kind of centralized tyrannical power they had just opposed and defeated (the British Crown and Parliament) could potentially materialize over time in the new nation. They unanimously agreed to incorporate a switch that could be flipped in the future to convene a group of citizen delegates charged with addressing what was broken.
That switch is called an “Article V Convention”, and contrary to popular myth, it is not a self-destruct button. An Article V Convention allows citizen delegates to produce a roster of ideas for each state to consider to approve as a US Constitutional Amendment. There are sufficient protections built-in to prevent any kooky, radically partisan, or extreme ideas from surviving the two-step nomination and ratification process. If you believe in the brilliance of the Founders, you cannot presume to think that they would have been so idiotic as to put a poison pill right in the heart of the constitution.
The convention clause was seen by the Framers as a necessary check-and-balance, and has the potential to reboot the Federal laptop that’s been locked-up and frozen for years. While banging on the keys may seem like it’s working (elections), if you really want to get something done, Article V is the reset switch.
Why an Article V Convention cannot runaway and throw out the Constitution
Two-thirds of the convention must vote to approve a suggested fix–and then a super-super majority of 75% of the state legislatures must independently vote to ratify each amendment. This 75% threshold is an exceedingly difficult task which allows for only the most robust and transpartisan ideas to survive the process and become law. Solutions delivered from the states to our nation via an amendatory convention occurs beyond the purview of Congress, outside of Washington DC. It’s a viable way for everyday citizens to say, “enough is enough”–and then have that actually mean something. The point is, elections and electeds may be unwilling or incapable of steering our ship of state away from the dangers of corruption spiraling our nation out of control–and this is precisely the reason for Article V’s existence.
The idea of a people’s intervention to a Federal Government addicted to spending and power is gaining traction
A group formed in 2007, Friends of Article V Convention (FOAVC.org), investigated the Congressional record to answer the question: how many times have the states applied for an Article V Convention?
Unbelievably, at the time there was no central repository containing these convention requests–no collated record maintained by Congress. The procedure laid out in Article V commands Congress to call a convention to propose amendments when two-thirds of the states apply. No other requirements are needed. Some scholars think that the applications must contain a same-subject amendment, or be sent at the same time. This interpretation creates restrictions out of thin air. To artificially add non-existing stipulations to an amendment is called “construction“–which in this case–has been repudiated by multiple Supreme Court rulings.
What the Friends discovered, is that there have been hundreds of applications submitted from all fifty states; and per the constitution, only 34 states need apply to trigger the non-discretionary call for an Article V Convention.
Is Congress purposefully not calling the convention because they view it as a threat to their power?
It’s certainly possible. Congress has sat on its hands and feigned to ignore the applications issue for at least a hundred years.
Professor Christopher Trudeau and some others from Cooley Law felt that the legal doctrine of “Laches” may apply, which is “based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; neglect to assert a right or claim (the people demanding that Congress call an Article V Convention) that, together with lapse of time and other circumstances, prejudices an adverse party.” The argument is, since the first call was supposed to have happened in the early 1900s, we can’t use an accumulation standard for those older applications. The reality is, however, that there have been hundreds of applications since 1960 alone, which should trigger the call. Because there isn’t any precedent in regard to the nation’s first Article V Convention, the doctrine of Laches here is by no means established.
The inherent power of the people resides in the convention
Retired Michigan Supreme Court Justice, Judge Thomas Brennan, in his pivotal article, “Return to Philadelphia (1982)” paints a passionate depiction of the infinite well from which springs the authority of the people, embodied in the convention.
“A convention is the last bastion of public sovereignty. It is perhaps the sole remaining device by which the people of the states can act together as the people of the United States; not as citizens or subjects of a supreme national government, but as the sovereign ultimate political authority from which springs the consent of the governed and the constitutional legitimacy of all public institutions and officers.”
Judge Brennan and Cooley Law school, the largest law school in the nation, recently sponsored a symposium entitled, “Article V Empowers The People of All the States.” Speakers included co-founders of FOAVC, active and retired Federal judges, constitutional scholars, and law professors, each presenting their case to the eager ears of an audience chiefly made up of law students; aspiring lawyers.
Bill Walker, a FOAVC co-founder, spoke about his lawsuit against Congress for failing to call a convention. Walker vs. Members of Congress went through the courts on appeal to the Supreme Court, where it was denied certiorari. It was denied because the Supreme Court only agrees to see a very small percentage of cases that request review. The lower court’s ruling was upheld with the court essentially standing aside due to the political question doctrine. The judges did not feel it prudent to coerce Congress to call a convention, even though the constitutionally required number of Article V applications had been submitted by the states.
In his presentation at the symposium Walker stated,
1. A convention call is peremptory (ie without debate).
2. There are sufficient applications already on record to cause a convention call.
3. A convention call is based on a simple numeric count of applying states with no other terms or conditions such as recessions, same subject, contemporaneous and so forth.
4. By refusing to obey the Constitution and so advocating the same in a public forum, the members of Congress violated their oaths of office and other federal criminal laws.
“The Solicitor General of the United States acting in both his official capacity and as official attorney of record for all members of Congress, after consultation required by federal law with those members, formally and officially waived response to my brief. Thus, he formally and officially acknowledged what I had stated in my brief was and is correct as to fact and law. This is what I mean when I state the only group I’ve been able to persuade is the United States government as this is the only official government act on the convention call in United States history.”
Judge James L. Ryan, a Senior Circuit Judge for the United States Sixth Circuit of Appeals, was asked at the symposium if he felt Congress was obligated to issue the call based on the evidence presented of the required number of convention applications having been submitted. He replied he didn’t have enough information to make an informed decision. If Judge Ryan, in public, had supported the idea that Congress was avoiding their constitutional obligations, as a sitting Federal Judge, he would be tying his hands to have to continue to investigate the issue to further determine the legal and potential criminal ramifications of Congress violating their of oaths of office by disregarding a clear constitutional directive. Many established lawyers, judges, politicians, are reticent to rock the boat; but this goes to the heart of our problems, doesn’t it?
Another FOAVC co-founder, Joel Hirschhorn, unpacked several reasons why Congress has gotten away with not obeying the constitution,
“Apparently, a combination of political corruption and public ignorance has allowed Congress to get away with this. Even among the millions of Americans that proudly declare their loyal allegiance to the Constitution, there is no recognition that unless they demand that Congress obey Article V, they are constitutional hypocrites. Congress has no right to unilaterally decide that it can ignore and disobey a part of the Constitution.”
The arguments against a convention have been fielded, and the simple fact remains, the corrupting influences currently in power have everything to lose from a convention–while everyday Americans have everything to gain. As it is, if we allow for the teeter-totter of mainstream politics to continue to have its sway, we will have essentially conceded defeat. All the bailouts, unfavorable court rulings and corporate/political sell-outs point to one trajectory–they indicate, that indeed, the coup may be complete–we may have lost control of our country.
But concerned citizens are bucking up, joining new initiatives, and sending the message that it’s time for the people to stage an intervention before its too late. An online effort called Convention USA, launched by Justice Brennan, is described as, “…an interactive, virtual convention for proposing amendments to the Constitution of the United States.” Term limits, balanced budget amendment, secure the vote–common sense ideas that in D.C. are usually always DOA.
A mock convention chaired by Harvard Law professor Lawrence Lessig and Republican political advisor Mark McKinnon was recently staged at a “Coffee Party” meeting in Louisville, Kentucky. Hundreds of delegates took to reviewing ideas that were brought to the table through a town hall meeting format. Professor Lessig has been mobilizing support for an amendment convention in the wake of the Citizens United Supreme Court ruling which sanctioned unfettered corporate electioneering and relied heavily on the legal fiction of “corporate personhood”. As legal persons in the Citizens United ruling, corporations can support or oppose any candidates with unrestricted political contributions. Recently, after Citizens United, the Chamber of Commerce has been accused of funneling foreign contributions into US elections-clearly a violation of the basic principles of national security. With many major corporations being multi-national conglomerates, it is not entirely clear how foreign influence will be kept from muscling under the radar into our body politic, if we don’t seriously regulate the level at which corporations can buyout our democracy.
Lessig’s “Call A Convention” website makes the pronouncement,
“Democracy in America is stalled. From the Right and Left, citizens are increasingly coming to recognize that our democracy does not work as our Framers intended.”
Things are happening, people are waking up to the fact that extraordinary times require extraordinary measures. If you’re in search of truly transpartisan solutions, and are not satisfied with electoral politics, check out this time-capsule gift from the Founders: the amendatory convention enshrined in Article V, an idea whose time has come–and whose design was scrupulously intended for present circumstance.
The Mormon prophecy Glenn Beck has been consciously or unconsciously sounding, predates Joseph Smith, because the Founders saw it as well. They laid out a specific plan to deal with the catastrophic nature of a collapsing Republic. It would be good to see pundits, progressive, conservative, libertarian, take up the cause to spread awareness of this tool. An Article V Convention will be a rebirth of civic engagement and a means to reinvigorate our democracy–let the people drive the bus out of the ditch.