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Fiver movement splits into two camps: Tea Party and open-convention supporters

Article V of the U.S. Constitution provides a time-capsule gift from the Founders to address entrenched corruption: the Article V Convention.
Article V of the U.S. Constitution provides a time-capsule gift from the Founders to address entrenched corruption: the Article V Convention.
Archives I Reference Section, Textual Archives Services Division (NWCT1R), National Archives Building, Washington, DC

"Fivers" support convening our nation's first Article V Convention. The Fiver movement is growing steadily with more Americans becoming aware of this time-capsule gift from our Founders designed expressly to take-on entrenched corruption. The Article V Convention (AVC) was written into the heart of our Constitution to provide one of two ways to propose amendments. It has never been used. Many believe it was designed for this precise moment. Many also believe the required number of state applications for a convention has already been met as early as a hundred years ago. They also assert that it has been blocked by Congress who would prefer the People not exercise this fundamental right.

Are members of Congress committing felonies by violating their oaths of office by not even counting the incoming state applications for an Article V Convention?

After a decade of being on this issue and co-founding one of the leading vanguard organizations calling for an Article V Convention (FOAVC), I can say these charges of dereliction of duty and even criminal negligence on the part of Congress are most likely accurate. Bill Walker sued Congress and the Supreme Court punted citing the "political question" doctrine, meaning, they shirk at the idea of telling Congress to do their job, which, should start with taking Article V seriously and stop pretending the issue will go away.

Several state legislatures have taken up the call in boilerplate language offered by the advocacy group, Convention of States (CoS), whose president is Tea Party Patriots co-founder, Mark Meckler. CoS is advocating for a closed convention that will only visit right-wing issues, or as they put it, “limiting the power and jurisdiction of the federal government.” Meckler has recently appeared on Glenn Beck’s talk radio show promoting the AVC and CoS. Much of the recent activity on the conservative side has been led by another right-wing firebrand, Mark Levin. Levin’s book, Liberty Amendments, lays out his right-wing wish-list for an Article V Convention.

But here’s the problem. As much as recent conservative activity has broken new ground for Article V awareness, their narrow political focus will doom the effort. For the Fiver movement to succeed it needs support from both the disenfranchised Right and Left—to wit, if the Fiver movement enters the mainstream consciousness solely as a creature of Tea Party politics it will be dispassionately blocked by Democrat and Republican beneficiaries of the status-quo. To surmount the status-quo both political margins must unite promoting their respective animating topics, like, Citizen's United and corporate personhood on the Left and the Balanced Budget Amendment on the Right.

This past December I penned an open letter to leaders of both Article V Convention camps expressing what I see as the most productive long-term strategy for Fivers to realize the nation’s first Article V Convention. Here is the substance of that letter.


I appreciate the continuing tone of this dialog and can see there is a wealth of different opinions regarding the Article V Convention (AVC) and our movement to create one. It is a fundamental check-and-balance designed into our government that hasn't been allowed to see the light of day. Consequently, we have been denied the brilliance of the Framers intent for a “bottom-up” mechanism to offer correction for an overreaching Federal Government. Accordingly, the Federal Government has continued to accumulate powers unto itself and refuses to relinquish or even re-consider those powers. Political creatures will rarely, if ever, volunteer diluting their power. The AVC was expressly designed as a barrier to contend with encroaching tyranny. Now, this is all old hat to us, but nevertheless, it is an evangel worth repeating, even to one another!

I wrote an email after our recent conference call asking for agreement to support an “open and transpartisan convention” which received several votes of confidence. More recently, Rob Natelson was added to this thread, and the other camp, which, ostensibly, seeks to have a closed and constrained convention driven by pre-convention state legislature instructions, single issue, or even pre-determined amendment language, has chimed in.

David Biddulph, of the Balanced Budget Amendment Task Force (BTW, an issue I support) broached the topic of “faithless electors” etc. to direct the conversation toward the constraints one camp would like to see placed on AVC delegates, etc. This “closed” agenda is echoed by the Indiana Law we’ve talked about (Senate Enrolled Act No. 224) which assigns a draconian Class D felony (6 months to 3 years in prison plus up to a $10,000 fine) on any AVC delegate wishing to explore solutions outside of the scope of instructions provided by the state legislature. These are the principles being promoted by Sen. David Long, a primary organizer of the recent Mt. Vernon gathering.

An email from Charles Kacprowicz of Federal Amendment Conventions also offered opinion supporting a constrained and controlled Article V Convention with pre-determined outcomes; essentially eliminating the possibility for any substantial deliberation during the convention. He states, “Any proposed Amendment is to be pre-approved by the Legislatures before it goes to the Convention. The delegates are to be bound under contract to their Legislature with instructions for how they are to conduct themselves at the Convention.” This pre-approval scheme will deny minority state delegates the opportunity to discuss amendment language.

Charles goes on to caution against 535 delegates discussing amendment language, “The smaller more conservative States will be overwhelmed and our Christian Constitutional heritage will not be restored. Article V provides the method for smaller more conservative States to lead the way at a Convention.”

Leaving the religious statement aside for a moment, Charles’s political leanings and persuasion are self-evident—and I neither fault him nor even his politic. I understand the desire to fight for particular political ideas actively and attempt to breathe success into realizing political goals in any way possible. For conservatives, right now, during the term of an increasingly unpopular democratic President, there is a desire to hit the streets with pitchforks and find a way—any way—to tip the scales of our body politic toward the other side. I remember during the Bush years, during an unpopular war, we succeeded at garnering quite a bit of support for the AVC from progressives, democrats and even Green Party members, etc. etc. It’s a pendulum that’s been swinging back and forth, but like a pressure release valve, once one side has been politically placated, any balanced momentum toward the convention subsides. And this brings me to my point; my appeal.

Firstly, I would like to move beyond the constitutional legal wrangling and get out in the open the purpose behind constraining the convention to single subject or pre-determined amendment language. One reason the “closed” camp wants single subject or pre-determined amendatory language is because they would only like their issue(s) to be visited. In this case, these are issues largely on the right side of the political spectrum—likewise, the desire for one state / one vote, also bolsters the smaller and more conservative states’ political heft. Another reason for the closed and pre-determined approach is to dispel the spectre of disaster that’s been painted by the John Birch Society and Phyllis Schlafly’s Eagle Forum fear-mongering about the constitution being torn to shreds. As I said before, there’s no need to overreact to specious arguments—this only gives credence to an opinion that never held water in the first place. As we all know, the convention cannot runaway, the Framers did not place a self-destruct switch in Article V and we don't need to be legal MacGyvers to prevent an imagined catastrophe that will never happen.

In my humble opinion, and with all due respect, I believe the “closed and constrained” approach is completely selfish and politically naïve—to wit, it’s going to take all of us Article V advocates to band together, for the good of the country, to compel Congress to issue the call. It has to be a new thing, not the old politics of gridlock. This is why our efforts should be toward an "open and transpartisan" Article V Convention. Without pressure from both sides of the political spectrum the convention will never see the light of day. What you’ve failed to realize in carrying the water for the corporate-handled organization ALEC, or in following a narrow legal analysis that avoids years of American law, is that because you’ve really only been interested in pushing a conservative and largely partisan agenda, you’ve left the other half of the Article V advocates behind, with no real seat at your table. This is selfish in my opinion and shortsighted. The Article V Convention is OUR table, together.

We need to stop the geeked-out constitutional navel-gazing, and do what’s right—as Americans. Folks—this is larger than our particular political peccadilloes—we are talking about convening AMERICA’s FIRST ARTICLE V CONVENTION. The Fiver movement is bigger than what we may want as individuals. It is a sacred and patriotic duty that we are entertaining, and no one should be shut out of the process.

This moment in time reminds me of the debate during the Second Continental Congress concerning the Declaration of Independence—you had pro-slavery and anti-slavery factions—that if allowed to play out their differences, the vote for independence would never have taken place. The notion of independence for our “united colonists” was greater than their political differences, and, like our current movement toward Article V, IT WAS BIGGER THAN THEM.

I remember recently discovering the first documentary evidence of the phrase “United States of America” written in Washington’s HQ in Cambridge during the Siege of Boston—the day after the Grand Union flag was unfurled at the dawning of the Revolutionary Year. I had read reams and reams of primary source documents in my study of this critical period in 1775 and 1776—the flag of America was a symbol of united sovereignty that in many ways had more power, more influence than the punctilios of legal detail that we are throwing at each other. These men from all different stripes, nationalities, banded together to give life to their “highest sense of right.” This is what I’m appealing to you gentlemen and gentlewomen; that we concede as a group that the movement to change the history of our nation is before us.

Until we band together, progressives and conservatives both desiring to witness the “bottom-up” check-and-balance that the Framers designed into Article V, instead of blindly continuing to view the tool in partisan light, we will never see the convention emerge. It’s that simple; because it’s nothing new at that point. Just the same ol’ politics. And it will be blocked.

Until we get past this self-centered illusion of control, and recognize the fact that politics should be the art of what’s possible, we will never reach our goal. The two-dimensional Red Team vs. Blue Team Super-Bowl dynamic that we’re playing out is not what the Article V Convention was intended to be. It’s been designed to pop a third dimension into our political discourse, not left or right, but bottom-up versus the dysfunction of a corrupt status-quo.

Gentlemen and gentlewomen, for the good of our movement, please let’s let go of our control dramas and open up the convention to all Americans—nothing bad will happen, it’s only a conversation for God’s sake. I humbly appreciate your time and consideration, and am deeply moved by the sacred opportunity that lies before us. Let's not screw it up.

Only when the Article V Convention is utilized as the transpartisan tool it was intended to be—rather than a means for a strictly partisan agenda—will it gain the majoritarian support necessary for its success.

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