The Real Truth about Secure Arkansas
Let’s stop the lies, slander and misinformation being sent out by a group called Secure Arkansas. If you want to know The Truth, read
“An extremely dangerous and risky Article V Amendments Convention/ Constitutional Convention (Con Con) resolution will be introduced in the Arkansas Senate State Agencies and Governmental Affairs Committee”
Secure Arkansas refers to any Article V Amendment Convention as a “Constitution Convention” or “Con Con”. Article V states unequivocally that the purpose of an Article V convention is to propose amendments to the Constitution. Article V gives a convention of states the exact same authority as Congress: the power to propose amendments — nothing more, nothing less. Article V does not allow for a new Constitution to be drafted, because the text states: “Congress ... shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution....” When ratified, the amendments proposed by a convention become part of our current Constitution. A convention cannot, under the plain text of Article V, set up a new constitution.
The first application for an Article V convention. 1 ANNALS OF CONGRESS 28–29 (1789) (Joseph Gales ed., 1834) (reproducing Virginia application of Nov. 14, 1788, calling an amendments convention “a convention of the states”).
The Supreme Court refers to it not as a “convention of the people” but as a “convention of the states,” Smith v. Union Bank, 30 U.S. 518, 528 (1831).
Founding-Era practice, upon which the Constitution’s amendment convention was based, was to limit in advance the topic and scope of multigovernment conventions. Discussions from the Founding Era reveal a universal assumption that applications would be made to promote amendments addressing prescribed problems. The first application ever issued, that of Virginia in 1788, was arguably limited as to subject and hundreds of later applications have been limited as well. Indeed, the central purpose of the state application and convention procedure—to grant state legislatures parity with Congress in the proposal process—would be largely defeated unless those legislatures had the same power Congress does to define an amendment’s scope in advance. It also follows from historical practice, not to mention common sense, that Congress should aggregate together towards the two-thirds threshold only those applications that address the same general topic.
“The ONLY THING that State Legislators can do under an Article V Amendments Convention is APPLY TO CONGRESS for a convention. After that, the U.S. Congress calls all the shots. (See Article I, §8, clause 17 of the U.S. Constitution.) If you don’t believe this is true, please provide the supporting documents to defend your position.”
This is blatantly false. On September 15, 1787, George Mason addressed the constitutional convention by pointing out that Congress might become abusive or exceed its power, it might therefore refuse to adopt a necessary or desirable amendment, particularly one designed to curb its own authority. On that very day, the second section of Article V was adopted unanimously. The whole reason the Framers voted to put the convention provision in Article V was to ensure that the states could bypass Congress and the federal government if they became too powerful. Giving
Congress rule making authority for the convention flatly contradicts the express intent of the Framers at the Constitutional Convention. Moreover, it makes no sense to say that Congress controls the convention process. Congress already has authority under the Constitution to propose amendments on its own initiative. Even the Supreme Court has recognized that an Article V convention is “a convention of the states”. It is a contradiction in terms to assert that a convention of states would be controlled by Congress. A convention of states is controlled by the states.
The Necessary and Proper Clause does not apply to Article V. This specific question has already been addressed in the federal courts that ruled that Congress’ attempt to use Article I power to affect the Article V process through ordinary legislation was unconstitutional. See Idaho v. Freeman, 529 F. Supp. 1107, 1151 (D. Idaho 1981) which specifically states “Thus Congress, outside of the authority granted by Article V, has no power to act with regard to an amendment, i.e., it does not retain any of its traditional authority vested in it by Article I.”
There is also a logical flaw here. Why would Congress even bother to make a legally doomed effort to try and control the Article V convention mechanism when it can simply propose amendments under its own Article V power? And why would the Founders include a second, separate process to give Congress amendment authority it already has?
“There is no such thing as a “Convention of States”; it’s a made-up term. The legal terminology is a federal Constitutional Convention (Con Con) which is what an Article V Amendments Convention actually will call for. As you know, after the Convention is called, then Congress would take over! And there are NO LIMITS on a Constitutional Convention’s purpose, procedure, agenda, election of delegates, OR the subject matter! (Article I, §8, clause 17)”
As presented above, the term “Convention of States” is recognized by the Supreme Court of the United States as well as the first application for an Article V convention in 1789.
The Convention of States applications SJR 2 and HJR 1001 limits the scope of the Article V Convention to proposing amendments that “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and set term limits for its officials and members of Congress.” The resolutions further states “This application is made with the express understanding that an amendment that in any way seeks to amend, modify, or repeal any provision of the Bill of Rights of the United States Constitution shall not be authorized for consideration at any stage. This application shall be void ab initio if ever used at any stage to consider any change to any provision of the Bill of Rights of the United States Constitution:” Contrary conclusions have no basis in fact, law or history.
The issue relating to the use of the Necessary and Proper Clause relating to an Article V convention has already been addressed and referenced above.
“HJR 1001 was originally scheduled to be heard in committee on Weds, Jan. 25, 2017, BUT Secure Arkansas JUST learned at 9:30 pm today that as of January 24, 2017 at 3:03 pm, the agenda was updated and HJR 1001 was put on the DEFERRED BILLS list. Does this mean it was simply scheduled for another time and NOT January 25th? This is highly likely to happen because of all the controversy surrounding the bill.”
Deferred means deferred. Use a dictionary! There is nothing controversial about being deferred, it simply means to be heard at a later time. Bills are routinely deferred when time for discussion is not adequate. Wednesday, January 18, 2017 the following bills were DEFERRED BILLS: HB 1008, HB 1005, HB 1046, HB 1004. Wednesday, January 25, 2017 the following bills were DEFERRED BILLS: HB 1008, HB 1005, HB 1046, HB 1004, HJR 1001. As you can see many bills are deferred. If you follow Secure Arkansas’s logic, there must be a controversy surrounding all these other bills as well.
Secure Arkansas offers references from “legal experts” dating from 1901 to 1991. Those cited represent the liberal progressive point of view, including Chief Justice Warren Burger and Associate Justice Paul Goldberg. By contrast, Associate Justice Antonin Scalia supported the call for an Article V Convention. A much more current status of legal scholars on this issue is reflected in more current legal literature cited below.
Secure Arkansas offer outdated evidence or documented sources. They resort to character assassination and guilt by association. No real proof of any kind that would stand up to scrutiny. See if you can verify their lies, slander and misinformation.
Check out the Convention of States Project, the Citizens for Self Governance and their founders Mark Meckler and Michael Farris. Don’t believe what Secure Arkansas says, check for your self. Secure Arkansas is not a reliable and trusted source of information.
Documentation and Resources for The Truth
Article V of the United States Constitution prescribes methods of amending the instrument. It tells us that all amendments must be ratified by legislatures or conventions in three-fourths of the states—but that before they can be ratified, they must be duly proposed.
The Constitution provides for two modes of proposal: by Congress and by a “Convention for proposing Amendments.” A convention must be called by Congress on “application” of two-thirds of the states.
Because a convention for proposing amendments has never been held, some commentators believe little is known about it or about the procedures leading to it. As a matter of fact, quite the contrary is true: we know a great deal about those subjects.
Our sources include convention practice both before and after the Constitution was adopted; numerous observations by leading Founders; hundreds of applications from state legislatures; two centuries of public discussion, resolutions, and legislation; and, finally, a string of court cases stretching from 1798 into the twenty-first century in which the judiciary has elucidated the principles and rules of Article V with satisfying clarity and consistency.
The Truth References
Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 FLA. L. REV. 615 (2013),
Case Law Dodge v. Woolsey, 59 U.S. 331 (1855) (noting that the electorate has no direct role in the amending process); Smith v. Union Bank, 30 U.S. 518 (1831) (referring to a convention for proposing amendments as a “convention of the states”); Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798) (holding that the President has no role in the amending process, and relying on the procedures used in proposing the first ten amendments).
Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 TENN. L. REV. 693 (2011)
Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 28 CONST. COMMENT. 53 (2012)
Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 TENN. L. REV. 765 (2011)
A Brief Reply to Professor Penrose, 78 TENN. L. REV. 807 (2011)
Natelson, Conventions, at 624; Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 TENN. L. REV. 693, 706 (2011)
The Documentary History for the Ratification of the Constitution 2520–22 (Merrill Jensen, John P. Kaminsky, & Gaspare J. Saladino eds., 2009).
Amendments by Convention: Rules Governing the Process, 78 TENN. L. REV. 693, 702–03 (2011),
Annapolis Convention Report, Sept. 1786, The Founder’s Constitution, 1:185
The Records of the Federal Convention of 1787, at 559–86 (Max Farrand ed., 1939).
Table of Relevant Case Law
AFL-CIO v. Eu, 36 Cal. 3d 687 (1984)
Barker v. Hazetine, 3 F. Supp. 2d 1088 (D.S.D. 1998) Barlotti v. Lyons, 189 P. 282 (Cal. 1920)
Bramberg v. Jones, 978 P.2d 1240 (Cal. 1999) Coleman v. Miller, 307 U.S. 438 (1939)
Davis v. Hildebrant, 241 U.S. 565 (1916)
Decher v. Sec’y of State, 177 N.W. 288 (Mich. 1920) Dillon v. Gloss, 256 U.S. 368 (1921).
Dodge v. Woolsey, 59 U.S. 331 (1855) Donovan v. Priest, 931 S.W.2d 119 (Ark. 1996) Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) Field v. Clark, 143 U.S. 649 (1892)
Goldwater v. Carter, 444 U.S. 996 (1979)
Gralike v. Cooke, 191 F.3d 911 (8th Cir. 1999), aff’d on other grounds, 531
U.S. 510 (2001)
Hawke v. Smith (“Hawke I”), 253 U.S. 221 (1920) Hawke v. Smith (“Hawke II”), 253 U.S. 231 (1920) Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798)
Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), judgment vacated as moot sub nom. Carmen v. Idaho, 459 U.S. 809 (1982)
In re Initiative Petition 364, 930 P.2d 186 (Okla. 1996) Kimble v. Swackhamer, 439 U.S. 1385 (1978)
League of Women Voters v. Gwadosky, 966 F. Supp. 52 (D. Me. 1997) Leser v. Garnett, 258 U.S. 130 (1922)
Miller v. Moore, 169 F.3d 1119 (8th Cir. 1999) Morrissey v. State, 951 P.2d 911 (Colo. 1998)
Opinion of the Justices to the Senate, 366 N.E.2d 1226 (Mass. 1977) Opinion of the
Justices, 172 S.E. 474 (N.C. 1933)
Opinion of the Justices, 673 A.2d 693 (Me. 1996)
Opinion of the Justices, 167 A. 176 (Me. 1933) Opinion of the Justices, 107 A. 673 (Me.
1919) Opinion of the Justices, 148 So. 107 (Ala. 1933) Powell v. McCormick, 395 U.S.
486 (1969) Prior v. Norland, 188 P. 727 (Colo. 1920) Ray v. Blair, 343 U.S. 214 (1952)
Rhode Island v. Palmer (“National Prohibition Cases”), 253 U.S. 350 (1920) Simpson v. Cenarrusa, 944 P.2d 1372 (Idaho 1997)
Smiley v. Holm, 285 U.S. 355 (1932) Smith v. Union Bank, 30 U.S. 518 (1831)
State ex rel. Tate v. Sevier, 62 S.W.2d 895 (Mo. 1933) State ex rel. Donnelly v. Myers, 186 N.E. 918 (1933)
State ex rel. Erkenbrecher v. Cox, 257 F. 334 (D.C. Ohio 1919) State ex rel. Harper v. Waltermire, 691 P.2d 826 (Mont. 1984) Trombetta v. Florida, 353 F. Supp. 575 (M.D. Fla. 1973)
United States v. Chambers, 291 U.S. 217 (1934)
United States v. Gugel, 119 F. Supp. 897 (E.D. Ky. 1954) United States v. Sprague, 282 U.S. 716 (1931)
United States v. Thibault, 47 F.2d 169 (2d Cir. 1931)
United States ex rel. Widenmann v. Colby, 265 F. 998 (D.C. Cir. 1920), aff’d,
253 U.S. 350 (1921)
White v. Hart, 80 U.S. 646 (1871)
Do not believe the lies, slander and misinformation promoted by Secure Arkansas. Read the references and information for your self.
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Your Senator & Representative
Let them know that you want to impose fiscal restraint on the federal government, reduce the power of the federal government and impose term limits on federal officials.
Ask them to vote YES on SJR 2 and HJR 1001.