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Defying convention? Constitutional change an open question

It’s a long, uphill battle, but it’s one that an increasing number of folks are pushing: a Constitutional convention.

Conservative talk show host Mark Levin brought the idea to the surface last year when he called for such a convention, but conservatives are divided on the issue.

An Article V Convention is the topic at hand, which the U.S. Constitution allows upon the application of two-thirds, or 34, of the 50 states.

The main idea behind the recent push began in the 1970s with the call for a Balanced Budget Amendment.

Depending on how one counts, either 34, 23 or seven states have done this, although three states approved a call for a broader Article V convention this year.

U.S. Rep. Duncan Hunter, R-Calif., recently asked House Speaker John Boehner to determine whether the 34-state threshold has been reached. There’s been no response yet from Boehner, although his spokesman told the Washington Times that Boehner is having is lawyers look into it.

Newport News resident Cary Nunnally opposes the push for a Constitutional convention, which she calls "The Con."

"From the first time I heard about it, I said, 'That can't be a good thing,'" said Nunnaly, who has been active in Republican Party politics.

"I"ve been fighting this for four years now," Nunnally said. She fears it will result in what's known as a "runaway" convention, where any stipulations and regulations imposed on the convention by Congress are summarily dismissed.

"I don't even have a smidgen of doubt that it would be a runaway convention," she said. "There are just so many places were it can go wrong and will. I'm afraid we'll get Communism and a fast ticket to saluting the U.N. flag."

Virginia's Legislature passed a resolution calling for a balanced budget amendment to the Constitution in 1984, Nunnally said, but rescinded it in 2004. Some say that states can't rescind such a vote. If that's the case the two-thirds threshold would appear to have been met. In February, the Virginia State Assembly soundly defeated a call for a constitutional convention for a balanced budget, 67-29. It also defeated a resolution that called for the broader Convention of the States convention that seeks multiple ways to rein in the federal government.

Not taking anything for granted, Nunnally traveled to Tennessee to encourage Volunteer State voters to pressure their Legislature to to rescind their most recent application for convention in April, following on the heels of Georgia's Legislature, which did the same thing a month earlier. Nunnally says she will go to Georgia and then return to Tennessee, where she will have a larger audience in August, thanks, she says, to the help of Carolyn Worssam, who was field director for the Richmond campaign in Dave Brat's recent victory over Rep. Eric Cantor in the Republican primary for the U.S. House.

Ohio and Michigan passed first-time applications for an Article V Convention in November and March, respectively. This was the first action by any of the states on a Balanced Budget Amendment since 1983.

Mathews County, Va., resident Sue Long, 82, remembers the battles from the 1970s and '80s. At that time the Democrats were pushing the idea of a constitutional convention, she said. Now a number of Republicans have jumped on board, although she said that liberal financier George Soros has contributed to the Convention of the States' effort. That's one reason she's against it.

But the two main reasons are the same as when she battled on the issue nearly 40 years ago.

"Congress could make the call and dictate what the conditions would be and who the delegates would be," she said. "We're taking a big chance that we could totally lose our Constitution." When the 1787 convention was held, she said the delegates were only supposed to amend the Articles of Confederation but instead came up with a new Constitution. The result was good, Long said, but there's no guarantee the same thing would happen today.

The second big reason Long opposes a convention is because, "There's no hope the Congress would abide by anything good that came out of it," she said.

In arguing for such a convention, John W. Redelfs of Arizona believes the nation has already committed suicide. "The Constitution is already extinct," he said. "Until we are honest about that and face up to it, we will not find a solution."

Nunnally disagrees. "It took us a long time to get this bad," she said. "It's going to take a long time to get better, but it is fixable. Change it by educating people," she said.

Article V of the Constitution allows two-thirds of both houses of Congress to call for a Constitutional Amendment, which must be approved by three-quarters of the states. That method has been used successfully thus far to propose 33 amendments, 27 of which were approved.

Article V also allows for a two-thirds of the states to apply for a convention, which Congress is obliged to convene. Any Constitutional amendments approved by a such a convention would also need to be ratified by three-quarters of the states. That's the method that states have been trying to use to bring about restrictions on the federal government.

Those who fear a runaway Article V convention note that the Constitution does not limit the number of amendments that such a convention may propose.

Some who favor a Constitutional convention believe that Congress can stipulate the bounds of a convention, as was proposed in numerous bills in Congress during the 1970s and 1980s. According to Thomas H. Neale, Congress has historically interpreted the language authorizing it to "call" an Article V Convention as providing a broad mandate to establish standards and procedures for such an assembly.

In response, those against a convention note that the Constitutional Convention of 1787 went against the prescriptions called for by the Continental Congress. Even though Article XIII of the Articles of Confederation - which was the law of the land at that time - stipulated that any alterations made to them required unanimous approval by the Legislatures of each state, a resolution passed with the support of only 11 of 13 states. (The two others would approve it more than a year later.) The convention also altered the mode of ratification from requiring each state to support it to only three-quarters of the states.

Some fear that the three-quarters threshold would be changed by an Article V convention.

The COS project, which started just last year, calls for an Article V convention for the limited purpose of proposing amendments limiting the scope, power and jurisdiction of the federal government. Supporters introduced resolutions in 15 state legislatures this year. The legislatures of Georgia, Florida and Alabama passed such a resolution this year. It also passed the state House in Alabama and Arizona, only to be tabled in the Senate in both states.

Linda Brickman, Arizona Legislative Liaison Director for the Convention of States Project, believes there is zero chance that a general convention would evolve into a runaway convention. To support her belief, she notes that there are 20 right-leaning states, 15 left-leaning states and 15 swing states. "The likelihood that one philosophy could as a practical matter impose itself on the convention is slim," she said.

She also believes that any effort by a convention to approve amendments outside Congress' call to a convention would be stricken by the courts.

Rita Dunaway, 37, Virginia Legislative Liaison for the Convention of States Project, said, "The problem is bigger than a balanced budget. The federal government doesn't seem to operate according to its specific enumerated powers in the Constitution."

"I read Article V. It gave me hope," she said. "The founding fathers gave us a solution for this situation... the federal government is out of control."

Dunaway, a Harrisonburg resident who also serves as legal counsel for the COS, previously worked for the Rutherford Institute, a nonprofit civil rights organization in Charlottesville.

"As a constitutional attorney, I would never be advocating for this if I wasn't absolutely convinced that it is our last best hope for constitutional government ... and that it is a safe process," she said.

"The reason people are fearful about a Convention of States operation is because we don't frequently meet in multi-state conventions. The reason the process is not described (in Article V) is because the founding fathers were very familiar with the process. They knew the rules and protocols," she said, and consequently didn't see a need to include them in the Constitution.

The Constitutional Convention of 1787 was originally called by seven states under their residual state sovereignty, Dunaway said. "It was not called under the Articles of Confederation," although the Congress later passed a resolution supporting it, she said.

Dunaway said she has read the original state documents that called for the Constitutional Convention of 1787. "I haven't met an opponent who has read the state instructions," she said. If the Constitutional Convention had been called under the Articles of Confederation, it would have been illegal because it didn't abide by the Articles, she said.

Dunaway believes that an Article V convention would be held under a "one-state, one-vote" rule. "That is the way it has always been. That's the only precedent," she said.

Twenty-one multi-state conventions were held prior to the 1787 convention in Philadelphia, and 11 following it. Each used the "one-state, one-vote" principle, she said.

She added that Congress is not allowed to change "one state, one vote" when it issues a call for a convention because it doesn't have the authority to do so. "Courts have said they decide based on the history of Article V challenges," Dunaway said, adding that this history supports "one state, one vote." She cites James Madison's notes on the Philadelphia convention as an example. She added that Congress would not vote on the rules for a convention; rather the state delegations themselves would vote on the rules in the convention.

At least 26, or more than half, of the 50 states would have to vote to do away with "one state, one vote" during a convention, she said. She doesn't believe this is likely because the smaller states would be giving up their power if they did so.

Thomas H. Neale, a specialist in American National Government, notes in his writing for the Congressional Research Service, that Congressional bills considered in the 1970s and '80s generally set the formula for convention delegates based on the Electoral College, which factors in population. Under this scenario, the number of delegates would be set at 535, or 538, depending on the status of the District of Columbia.

Despite this possibility, Dunaway still maintains that an Article V Convention is the solution to the problem of federal largesse, which has resulted in a federal debt of $17.55 trillion as of July 4, 2014.

"I've yet to hear an alternative solution, and so I believe there comes a time when we have to trust the Constitution and the process the founding fathers gave us," she said. The alternative is "to let fear keep us cowering in the corner."

Brickman concludes, "Are we more threatened by the ... chance of a runaway Article V convention or by the reality of a runaway federal government?"

That, it seems, is the question.

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