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PA Bill Number: SB546

Title: In general principles of justification, further providing for use of force in self-protection.

Description: In general principles of justification, further providing for use of force in self-protection. ...

Last Action: Referred to JUDICIARY

Last Action Date: Apr 9, 2021

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Aggressive New Scheme Exposes Article V Convention Lobby :: 02/26/2021

The United States is dangerously close to Congress calling “a convention for proposing amendments” under Article V of the U.S. Constitution — otherwise known as a constitutional convention, convention of the states, or Article V convention (A5C) — based on a new scheme for aggregating (counting and combining) applications submitted by state legislatures.

Article V provides two methods for proposing amendments to the Constitution. The first method states, “The Congress, whenever two thirds of both Houses [the U.S. House of Representatives and U.S. Senate] shall deem it necessary, shall propose Amendments to this Constitution.” This is the method by which every ratified amendment to the Constitution has been proposed. The second method, which has never been utilized, states: “The Congress […] on the Application of the Legislatures of two thirds of the several States [or 34 out of 50 states], shall call a Convention for proposing Amendments.”

Senate Resolution 29, currently before the General Assembly of Georgia, applies to Congress to call an Article V convention (A5C) to propose a federal Balanced Budget Amendment (BBA) to the Constitution. It purports to aggregate, or combine, the “live,” or outstanding, applications from 27 states that have recently passed applications for a BBA convention with centuries-old applications from six other states that have applied for a supposedly unlimited (plenary) convention. If SR 29 should pass, Georgia would make the 34th state, based on this new aggregation scheme.

However, this raises the question: Why are A5C advocates suddenly looking at new ways to reach the threshold of 34 states, and who’s pushing this new scheme?

Ever since Mark Meckler, co-founder of Tea Party Patriots, and radical leftist Lawrence Lessig, a Harvard Law School professor, co-hosted the Constitutional Convention Conference at Harvard Law School in 2011, the convention lobby has been falsely assuring state legislators that every application for an A5C needs to be the same or similar to get to 34, in order to convince legislators that the convention won’t be become a “runaway convention,” in which delegates propose an amendment or amendments that go beyond the original scope of the convention, such as repealing past amendments (Second Amendment for example) or go even further by drafting an entirely new constitution. The truth is that nothing in Article V states that the applications have to be the same or similar, that the applications have to be limited to a single amendment or subject, or that the convention must be limited to the subject of the application. These are modern fabrications designed to mislead legislators. And legislators, who don’t research both sides, repeat these falsehoods while debating in legislative chambers all over the country.

 In a 2020 article titled “A Convention Strategy,” published on the pro-A5C website, convention proponents Paul Gardiner, Ron Scott, and Neal Schuerer admit the following: “Additionally, some constitutional scholars believe that even in a so-called limited COS, nothing (except the COS rules established by the delegates themselves) will prevent amendments being proposed and voted upon that are outside the limitations stated in COS applications.” (Emphasis added.) The article continues, “Finally, another important consideration in determining a strategic direction for the AV COS [A5C] movement are the opinions of several constitution scholars (Paulsen, Black, Dellinger, Caplan, et al.) that Congress lacks authority to call and sanction a limited COS.” (Emphasis added.) Clearly these convention proponents believe that an Article V convention does not have to be limited to the purpose for which it is called, unless the delegates themselves decide to follow the original purpose of the convention — but they don’t have to.

Aggregation Scheme Origins

The promotion of the new aggregation scheme can also be traced to Gardiner’s article. He reveals that A5C advocates are concerned about recent rescission efforts, and as a result must push for an A5C as soon as possible before any more outstanding applications are rescinded. “In concert with the axiom that ‘timing is everything’, and in view of the increasing risk of COS application rescission efforts in different states, it would be a very wise action to have a COS successfully convened and conducted no later than end of year 2022,” Gardiner pleads.

He also cites the January 2020 Article V Convention Legislative Progress Report, in which Georgia-based attorney David F. Guldenschuh reluctantly admits that the A5C movement has experienced a “plateauing” in its efforts to reach the necessary 34 states. “The last half of the past decade saw the Article V movement peak, but the last two years have seen a plateauing of our efforts. We are now down to four major groups: the Center for State-led National Debt Solutions (CSNDS; the 501(c)(3) arm of the BBA Task Force); U.S. Term Limits; WolfPAC/Free & Fair Elections; and the Convention of States Project,” Guldenschuh writes. Readers should keep in mind that WolfPAC is a left-wing group started by Young Turks founder Cenk Uygur.

Gardiner then proposes that the A5C movement support the aggregating, or combining, of different A5C applications in order to reach the necessary 34 states. “In concert with the axiom ‘a bird in the hand is worth two in the bush’, it makes good sense to use whatever qualifying COS applications are available to have a COS convened as soon as possible,” further adding, “Convening a general COS overcomes the risk of SCOTUS ruling against the legitimacy of Congress having authority to call and sanction a limited COS.”

Gardiner cites two recent aggregation studies completed in 2018, based on writings of noted A5C advocates Michael Stokes Paulsen, Robert G. Natelson, Professor Akhil Amar, Charles L. Black, Jr., James Kenneth Rogers, David C. Huckabee, Thomas M. Durbin, Walter E. Dillenger, and Russell Caplan. The first study was produced by the American Constitution Foundation (ACF) and the second by attorney John M. Cogswell. Both the ACF and Cogswell aggregation studies conclude that there are at least 34 valid, qualifying applications to require Congress to call a general, or unlimited, convention.

Gardiner concludes his article with the following recommendation from the ACF:

The comprehensive strategy of ACF (or similar strategy) needs to be seriously considered and funded in planning to make application to the Congress to call a general COS. Below, for example, are some of the more important actions listed by ACF:

● Organize the states that have already submitted applications for an Article V General Convention to affirm that their applications remain valid and in force, and that they expect Congress to discharge their duty to call the Convention;

● Work with additional states (if necessary) to remove limiting language from an existing application, or pass a new application for an Article V General Convention to attain the 34 applications needed to trigger the Convention;

● Equip State Attorneys General for litigation to compel Congress to call the Convention, should it be necessary;

● Hold a pre-convention assembly to prepare state legislatures to effectively participate in the Convention; and

● Provide the states with logistical support from pre-convention all the way through ratification, including facilities, security, communications, media, and legal support.

This is key, as it reveals their strategy to reach 34 states. They want to aggregate the different A5C applications by removing any “limiting language” from existing applications that may hinder aggregation and they want to pursue litigation to force the call for a convention. The last bullet point — providing “states with logistical support from pre-convention all the way through ratification, including facilities, security, communications, media, and legal support” — will require an exorbitant amount of money to carry out. This raises the question of where such a vast revenue stream is coming from. And if an A5C cannot go astray, as they have been assuring legislators for years, why would the state legislatures need all of this logistical “support” all the way through the ratification process? Furthermore, what kind of pressure, or “support,” will the A5C lobby exert on the convention delegates?

In addition to Gardiner’s article, A5C enthusiast Robert Natelson has called for aggregating applications.

On June 7, 2018, Natelson wrote a paper titled “Federalism & Separation of Powers” with the subtitle “Counting to Two Thirds: How Close Are We to a Convention for Proposing Amendments?” In the paper, Natelson concludes, in part:

When counting applications toward a convention for proposing a balanced budget amendment — or, indeed, toward a convention for proposing any other kind of amendment — Congress should add to the count any extant plenary applications.

David Biddulph, the co-founder of Let Us Vote for a Balanced Budget Amendment Citizen’s Campaign, promoted a similar aggregation scheme in a presentation he gave to the American Legislative Exchange Council (ALEC) on July 21, 2020, according to an Associated Press article. “The new plan, presented during the ALEC workshop with a PowerPoint presentation from conservative activist David Biddulph, is to take the 28 state resolutions seeking a balanced budget amendment and combine them with six state resolutions passed over the last two centuries generally seeking a constitutional convention,” the AP reported. See this chart, titled “34 Active Article V Applications,” produced by Let US Vote for a BBA.

“The oldest of those was a resolution passed by New York in 1789, according to a 2018 article on the conservative Federalist Society’s website by constitutional scholar Robert G. Natelson,” the AP explained.

Biddulph (like Gardiner) recommends, based on the ACF aggregation study, that each state’s attorney general should be equipped for “litigation to compel Congress to call the Convention, should it be necessary.” According to the AP, “Biddulph proposed recruiting state attorneys general to file a legal order demanding that Congress recognize the 34 state resolutions and convene a constitutional convention. If Congress refuses, the AGs would sue in federal court.” Biddulph reportedly told the AP that a lawsuit was the “best shot” for getting Congress to call a convention.

Constitutionalist organizations such as The John Birch Society, Eagle Forum, Phyllis Schlafly Eagles, and Ron Paul’s Campaign for Liberty have long opposed the convening of an Article V convention for proposing amendments, because, they say, convention delegates, as sovereign representatives of “We the People,” would have the inherent right to propose any and all amendments or “to alter or to abolish” our “Form of Government” (i.e. propose a new constitution), as expressed by the second paragraph of the Declaration of Independence.

In fact, new proposed constitutions have already been drafted waiting for such an opportunity to formally propose them. Take, for instance, the Ford Foundation-funded “Constitution for the Newstates of America,” proposed by Rexford Tugwell in 1974. Tugwell, who was previously the head of FDR’s “New Deal Brain Trust” and the chairman of the 1948 platform committee for the socialist Progressive Party, was hired by the Ford Foundation to assemble a team of academics to re-write the U.S. Constitution in time for America’s bicentennial. Tugwell’s The Newstates Constitution waters down God-given individual rights and state sovereignty. Article XII of the proposed Newstates Constitution calls for its “acceptance by a referendum,” or national popular vote. Voting machines anyone, ergo the 2020 election?

Enter Georgia

On January 27, 2021, Georgia State Senator Bill Cowsert (R-Athens) introduced, before the Georgia General Assembly, Senate Resolution 29, a resolution applying to Congress for an Article V convention for the ostensible purpose of proposing a Balanced Budget Amendment. However, SR 29’s unique wording is the first of its kind among A5C applications. Below is the convoluted wording, which reads unlike any other BBA application, especially at lines 21-32:

  1. BE IT FURTHER RESOLVED that this application shall be deemed an application for a
  2. convention to address only the subject herein stated. For the purposes of determining
  3. whether two-thirds of the states have applied for a convention addressing any of the subjects
  4. stated herein, this application is to be aggregated with the applications of any other state
  5. legislatures for the single subjects of balancing the federal budget, including but not limited
  6. to previously adopted applications from Alabama, Alaska, Arizona, Arkansas, Colorado,
  7. Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi,
  8. Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota,
  9. Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Washington,
  10. Utah, West Virginia, Wyoming, and Wisconsin; and this application shall be aggregated with
  11. the same for the purpose of attaining the two-thirds of states necessary to require the calling
  12. of a convention, but shall not be aggregated with any applications on any other subject. [Emphasis added.]

The six states, emphasized above in italics, have not passed BBA convention applications! Listed below are the six states along with their Article V convention applications that Senator Cowsert wants to combine with the 27 active applications for a BBA convention:  

  • New York (1789) for a Bill of Rights;
  • New Jersey (1861) to prevent the Civil War;
  • Kentucky (1861) to prevent the Civil War;
  • Illinois (1861) to prevent the Civil War;
  • Oregon (1901) for the direct election of U.S. senators; and
  • Washington (1901) for no stated purpose other than Congress simply “call a convention for proposing, amendments to the constitution of the United States of America as authorized by article v.”

Robert Natelson, in his 2018 paper “Federalism & Separation of Powers,” regards these six applications as being “plenary.” Whether or not they are “plenary,” for an unlimited convention, is irrelevant, as ultimately it would be up to Congress to decide which applications to aggregate.

Senate Resolution 29 appears to be a trial balloon by the convention lobby to test the aggregation scheme meant to trigger an Article V convention as soon as possible, without bothering to pass any additional unpopular applications through state legislatures. It belies the promises that A5C spokesmen have been making to legislators for at least the past eight years that their applications for a “limited” convention would prevent a runaway convention.

Legislators aren’t being told the truth. The hypocrisy is clear in Georgia, because Senator Cowsert, the lead sponsor for SR 29, told his colleagues on the Georgia Senate floor on March 12, 2020 that the 33 states (listed in SR 29 and amended into its 2020 predecessor, SR 854) had all passed applications for a BBA convention. And he said that they were added specifically to prevent a runaway convention!

Cowsert told fellow lawmakers:

This is single subject matter specific, asking only for there to be an amendment on the balancing the budget presented or considered by the States. That’s the reason for Amendment One which I will go speak to. I heard feedback in the halls and from constituents. They wanted to make sure that this was not a runaway convention to totally revamp our United States Constitution. So, the Amendment tightens it up and specifies the States that already have balanced budget amendment applications in to the United States Congress, and makes it clear that we’re restrained to only that one subject matter. [Emphasis added.]

Responding to a question brought up by another senator, who was concerned about the potential of combining the BBA application with the applications of other states that applied for a convention for another propose, Cowsert replied, in part:

If there are states that have applications on other subject matters, they would not be considered as one of the 2/3 of the states that it requires to join in in calling for a constitutional amendment convention — on just balancing the federal budget. So, I have built a safeguard in there for you, so that it doesn’t get lumped in and we end up having multiple subject matters considered.

But Senator Cowsert has now removed that so-called safeguard by including aggregation language in both SR 854 and SR 29 that does the opposite of what he said when promoting SR 854 in 2020.

The biggest hurdle for convention advocates, such as Senator Cowsert, in passing A5C applications are the legitimate concerns from other legislators and their constituents about a runaway convention where any and all amendments may be proposed. For example, if the convention becomes a “runaway convention,” delegates in favor of gun control may push to abolish, or at least severely weaken, the Second Amendment.

Delegates may go even further and propose an entirely new constitution with an easier ratification process. In the event that a new constitution is proposed, the new constitution would have its own mode of ratification, such as Article VII of the U.S. Constitution. Ultimately, the mode of ratification for a new constitution would be up to its framers, rather than being bound by Article V. In fact, this already happened and is how our current Constitution came to be, replacing the previous Articles of Confederation.

Looking Back to See Forward

The Continental Congress and the states originally tasked the delegates to the 1787 Philadelphia Constitutional Convention with “the sole and express purpose of revising the Articles of Confederation.” At the time, the Articles of Confederation were the supreme law of the land. Article XIII of the Articles of Confederation specifically stipulated that “any alterations” made to the Articles of Confederation had to be unanimously “agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.” (Emphasis added.)

Both of these mandates were clearly exceeded. The delegates instead chose to replace the Articles of Confederation with an entirely new federal constitution. And they also altered the mode of ratification from being “confirmed by the legislatures of every State,” according to Article XIII of still-governing Articles of Confederation, to ratification by only nine of the 13 states. Article VII, Section I of the U.S. Constitution states: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

Who is to say that the same historical precedent won’t be used again to draft an entirely new — perhaps even socialist — constitution that would be considered ratified by way of a national referendum, in a modern populist appeal to “democracy”? This would enable those pushing for the new constitution to claim popular support, when they may simply have control of the voting machines, and therefore, control of the outcome. This is why any Article V convention, including one ostensibly “limited” to proposing a single subject or amendment such as the BBA, should be avoided at all costs.

Despite the claims by A5C advocates such as Cowsert, Gardiner, Natelson, Biddulph, and Mecker, and Lessig that a convention is necessary because it is the “only” solution to rein in Washington, the truth is that Article V was never meant to restrain the federal government’s usurpation of power. The framers of the Constitution drafted Article V to remedy any potential defects in the Constitution.

According to James Madison’s notes on the Federal Convention of 1787, Alexander Hamilton explained on September 10, 1787 that the purpose of amendments was “for supplying [archaic use, meaning to remedy] defects which probably appear in the new System.” And in The Federalist No. 85, Hamilton further explained the corrective purpose amendments, writing in part:

In opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. For my own part I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers. [Emphasis added.]

Today’s problems in Washington do not stem from defects in the Constitution, but rather Washington’s departure from the Constitution’s original meaning and interpretation. Just as an informed electorate would be necessary for upholding any new amendments, so too is an informed electorate necessary for the preservation of the current U.S. Constitution. Therefore, the solution is not a lack of new amendments, but a lack of education about and fidelity to the current Constitution.

In Chapter 17 of Alexis de Tocqueville’s Democracy in America, published in 1831, de Tocqueville observed how well the average American citizen understood the Constitution: “In New England, every citizen receives the elementary notions of human knowledge; he is moreover taught the doctrines and the evidences of his religion, the history of his country, and the leading features of its Constitution. In the States of Connecticut and Massachusetts, it is extremely rare to find a man imperfectly acquainted with all these things, and a person wholly ignorant of them is a sort of phenomenon.” (Emphasis added.)

Would a modern-day de Tocqueville traveling through America in 2021 be able to write or say the same about American citizens in any given state? Without such widespread knowledge among the American electorate today about the Constitution or of its underpinning philosophy of inherent God-given rights, individualism, and freedom from oppressive government, this author should also tremble at the results of an A5C today. As the late Supreme Court Justice Antonin Scalia said during an appearance on an episode of The Kalb Report, on April 17, 2014, “I certainly would not want a Constitutional Convention. I mean whoa. Who knows what would come out of that?”

Yet today’s main A5C groups — Convention of States Project, BBA Task-Force/ Let US Vote for a BBA, Wolf-PAC, and U.S. Term Limits — have been misleading the public and state legislators for years, telling them that the state legislatures will control the convention process; that Congress has only a ministerial role to call the time and date of the convention; that the state legislatures will control their delegates to the convention; that the delegates must stick to the subject of the application; and that all states have to pass the same subject application to be counted toward 34, which, in fact, SR 29 now deviates from by attempting to aggregate 27 BBA convention applications with six non-BBA convention applications.

The various A5C groups sell legislators on the idea of applying to Congress to call an A5C with false assurances, because without doing so, legislators wouldn’t vote for their applications. Senator Cowsert’s aggregation language in SR 29 not only exposes his own hypocrisy or ignorance — in light of his aforementioned remarks about SR 854 on the floor of the Georgia Senate in 2020 — it also exposes the hypocrisy of the A5C lobby as a whole.

Cowsert, Gardiner (and his colleagues at Hunt for Liberty), Biddulph, and Natelson now admit that the applications don’t have to be identical or similar — the very opposite of what Mark Meckler and his COS Project and BBA proponents have been telling people for years. In light of this important revelation, legislators should ask themselves what else the A5C lobby has fabricated.

The truth is that a convention cannot be limited; the delegates to the convention are the sovereign representatives of the people and, as such, would have the inherent Right to propose any and all amendments to the Constitution or propose an entirely new constitution with its own (easier) mode of ratification; applications do not have to be same to be counted toward the 34-state threshold; and Congress ultimately decides which applications to aggregate. Any individual or group saying otherwise is either intentionally misinforming or wholly ignorant about Article V.

The subject of the application for an Article V convention is irrelevant. An Article V convention convened today, for any stated purpose or subject, would be a disastrous mistake, jeopardizing the Constitution and our God-given rights.

The problem isn’t the Constitution. Instead of applying to Congress to call a convention to propose amendments, state legislators ought to consider Article VI of the Constitution and nullification as a safe and constitutional means for stopping any unconstitutional actions, orders, legislation, or rulings from the federal government.

Nor was the Constitution written solely for attorneys; it was written for the average citizen to read and understand. Education is paramount to keeping our Republic and preserving liberty for future generations. Rather than taking the word of lawyers, “constitutional scholars,” and lobbyists who often have an agenda and are backed by special interests, both lawmakers and voters should read and study the Constitution, along with the Declaration of Independence and the Federalist Papers. The John Birch Society’s “Constitution is the Solution” video series is an excellent resource that can be used to learn about the Constitution and to educate others about this exceptional document.