When we contemplate the full array of ways the U.S. and state
constitutions are being violated today, the way to correcting the
violations and bringing government officials and agents into
strict compliance is daunting. However, our forefathers foresaw
this situation and provided us with the tools we need.
Many imagine the solution to be to replace officials with strict
constructionists. While that might work in the long run, let's
look at the numbers. We could replace all the members of the House
of Representatives in two years, the President and Vice-president
in four, and all the members of the Senate in six. But members of
the federal bench serve for life. It would take at least twenty
years to replace all of them, and as long to replace most of the
members of the bureaucracy. Even if we could repeal all
unconstitutional legislation, it would be opposed by "reliance
interests" with a stake in the ways things are, and until more
than 200 adverse court precedents could be overturned, all the
government activities that are based on those precedents would
persist, with the agents saying, "But the courts have held ...".
We also also a problem of where are we going to get all the
qualified replacements that are strict constructionists? The
schools aren't turning out enough. It would take at least another
generation to change the culture of the educational process to
This list of Supreme Court Milestones contains over 100 key
precedents that need to be overcome. Any amendment strategy needs to
address each of them.
The reality is that it is those court precedents as much as any
legislation that enable the usurpations. Legislation comes and
goes, but precedents persist until they are overturned by later
court decisions or by amendments. And it is not just the initial
precedents in a chain, but all the ones that are built on it.
Assuming we could replace all the members of the U.S. Supreme
Court and the Circuit Courts of Appeals, how long would it take to
overturn all those adverse precedents by litigation? There are
more than 200 not counting the many that are piled on the first in
each chain. With our present judicial legacy, not more than about
half of them would ever be challenged at the trial level, to
preserve a basis for appeal. The Supreme Court only takes about 80
cases a year (out of 8000 applications). Optimistically, we could
only expect about one such case to reach the Supreme Court every
two years, so it would take a Court of nine at least 200 years to
overturn the adverse precedents accumulated over the past 200
years. If, as has been proposed, the size of the Court were
increased to 28, the number of cases they could hear could be
tripled, but that would still be at least 67 years. What are the
odds of maintaining a Court of strict constructionists throughout
Realistically, about the only way short of revolution to correct
usurpations that are anchored by entrenched judicial precedents is
amendments to the Constitution. They don't have to bring changes
to original meaning and understanding. They can just be clarifying
amendments. The Bill of Rights (except for the $20 rule of the 7th
Amendment) and the Reconstruction Amendments (except for the
enforcement clauses) were clarifying amendments, in that they were
intended to return understanding to what it was originally
supposed to be before the courts went astray.
The way it can be done is discussed in State Calls for An Article Five Convention:
Mobilization and Interpretation, by Gerard Magliocca. The
strategy here set forth is based on his analysis.
The following are the steps to be taken:
Activists compose the exact language of the amendments they
want adopted. See template.
Activists get the legislatures of as many states as possible
to adopt resolutions urging Congress to adopt the amendments as
proposals to be sent to the state legislatures for ratification.
Congress adopts amendment as proposed and proposes it back to
the states for ratification. See template.
- Activists pressure state legislatures to ratify the
- After each amendment ratified, activists conduct litigation to
entrench the new amendment in jurisprudence. This will continue
until the entire governmental system is thoroughly infused with
- Repeat with further amendments.
- Build a political culture to sustain the gains made and
For groups not yet willing to advance the statements as
amendments, they can advance them as position statements,
demanding compliance with them as correct understandings of the
Constitution. See template.
It is important to realize that it may not be necessary to actually get the amendments
ratified for them to drive the reforms sought. The Equal
Rights Amendment provides a good example of how this can occur.
The pressure to get them ratified may bring about reforms in
legislation and the courts before ratification occurs, making it
unnecessary, although actual ratification would help entrench the
reforms. It is important, however, to sincerely seek ratification.
Supporters in Congress and the legislatures aren't going to
support either the amendments or the reforms if we don't commit to
following through. They want to stay in office, and to go with us
we have to be willing and able to support them for doing so.
The specter of a "runaway" constitutional convention is often
raised, both by opponents of reform and proponents using it to
scare Congress into proposing amendments themselves. This is
discussed in the Magliocca paper linked above. He mainly discusses
petitions for an Article V convention, pointing out that any
proposals they might make would still have to be ratified by 3/4
of the states.
Perhaps the greatest hazard is that such a convention could
propose an entirely new constitution with a new method of
ratifying it. After all, that was done by the Philadelphia
Convention of 1787, which changed the method of ratifying
amendments to the Articles of Confederation from a unanimous vote
of all states to ratification by nine of them, for the proposed
new constitution. Suppose the new constitution from the new
convention provided that it would be ratified if a majority of
U.S. residents (not just citizens) voted for it in a popular
referendum. Now suppose the new constitution contained clauses
that would, for example, guarantee every adult resident of the
U.S. an income of $60,000 a year (as has been proposed by Yale law
professor Bruce Ackerman), a free house, and a free luxury car.
Does anyone imagine there would not be a majority vote for that?
Now suppose the referendum were actually held, and the new
constitution adopted by that process. How far would anyone get
trying to resist it because it was not adopted according to the
procedure specified in Article V of the present constitution?
There are some well-funded groups that would try to hijack such a
convention, and might succeed. They might also hijack enough of
the state legislatures if the amendment were submitted to them for
ratification. Spread enough money around and most state
legislators can be bought.
How would Congress propose an Article V constitutional convention
be held? There are many ways, but we can be sure they would not
just throw it open for anyone to attend. They might use the model
of national party conventions, in which precinct conventions elect
delegates to a county convention, which then elects delegates to a
district convention, which then elects delegates to a state
convention, which then elects delegates to a national convention.
Imagine a merged convention of Republicans and Democrats. The
closest function of such conventions to a constitutional
convention would be their platform committees. Anyone who has
worked on the platform committee of a major party will recognize
the product is unlikely to be of high quality, that might be
ratified by the states.
More likely Congress would just have either the governor or
legislature of each state send 3-5 delegates from each state.
Realistically, there is no way Congress would ever call a
constitutional convention. They hate the idea. Even if enough
states demanded it, the most Congress would do is propose an
amendment to the states on the subject for which the call was
made. That process, however, is every bit as dangerous as a
constitutional convention. More so, because it is more likely the
product of Congress would be well-received by the state
legislatures contemplating ratification. The way to avoid either a
bad proposal from a constitutional convention or from Congress is
for people to propose through the state legislatures amendments
that are all identical and carry our reforms rather than changes
our adversaries might compose.
Our adversaries are loath to propose amendments. Their advantage
lies is quiet usurpation. If they proposed amendments to allow
them to do what they are now doing without authority, they risk
having those amendments rejected and with them the sweet little
racket that the rejection would expose as such. That gives us a
natural advantage if we unite behind specific language for how we
want the Constitution interpreted. Nothing else we can do will
work to bring government back into compliance with the
Constitution as originally meant and understood. Everything else,
even complete replacement of every official with strict
constructionists, would not work. We have to reverse the more than
200 court precedents on which the usurpations are based, and it
would take more than 200 years to do that, even if we could keep
nothing but strict constructionists on the Supreme Court for that
Congress won't call a constitutional convention if we don't have
the state legislatures petition for them to do so, but instead
petition for Congress to propose back to all the states what a few
states are proposing to Congress. Magliocca discusses petitions to
call a constitutional convention used as a threat. I have a quite
different strategy. Of course, Congress might be concerned that if
they don't adopt the proposals and send them to all the states,
the states that are calling for Congress to propose them will next
call for a constitutional convention. But that is not what the
first states would be doing. They would only be letting Congress
worry about what their next step might be.
It has been pointed out that once a convention is called, a
majority may vote to suspend the rules and take up anything it
wants, including very different amendments.
My proposal essentially calls a convention of the 50 state
legislatures meeting separately. No reason a convention cannot
convene in that way, essentially as 50 subconventions, each with a
rule for what it may consider, but with amendments already
drafted, so that all they can do is vote them up or down. The
result would be identical proposals which would represent the
resolution of the combined constitutional convention, which would
then be sent back to the states for ratification. It's a little
tricky, but it could be made to work.
No one should imagine this process will be easy. Still, we have
seen an effort led by a single individual, Gregory Watson of
Austin, Texas, to revive
and get ratified as the 27th Amendment,
which was originally proposed in 1789 along with the Bill of
Rights. It is worth studying how he did that.
It is not difficult to get legislation adopted if there is no
opposition to it. Especially by a state legislature. In many cases
a single constituent can get a friendly legislator to introduce
something, and if there is no opposition, get it passed. A state
resolution asking Congress to do something is not likely to have
opposition. It costs nothing, and changes nothing, especially if
it is not a call for a constitutional convention. So the second
step of the strategy is not difficult.
The second step is more difficult, and could encounter some
opposition. The key is to have identical proposals from more than
2/3 of the state legislatures, enough to call a dreaded
constitutional convention. The argument could then be used that if
Congress doesn't propose the identical amendment to be states for
ratification, then calls for an Article V convention would be the
The third step is where large numbers of determined voters would
need to be mobilized. It doesn't have to be a majority. Most
amendments have been ratified with the support of determined
minorities in each of 3/4 of the states. The key is to avoid
provoking strong opposition, and the best way to do that is with
amendments that potential opponents don't easily recognize as
threats to their interests. The amendments proposed here are
worded to minimize that risk.
Other proposals to rein in government officials would require not
just majorities of the voters, but fervent supermajorities,
sustained over generations. We do need to change the political
culture in the direction of strict constitutional compliance, but
the process of pushing for these amendments can do that, even if
they are not ratified. All it takes is a determined minority that
is focused on the goal.
of Jon Roland before the Texas Select Committee on State and
Federal Power and Responsibility in opposition to HJR 77,
March 12, 2015 — Video of the testimony of all witnesses.
Roland is the last to testify.