before the Texas Select
Committee on State and Federal Power and Responsibility
in opposition to HJR 77
Calling for an Article V Convention
March 12, 2015
I am the Founder and President of the
Constitution Society, website at http://constitution.org .
I urge the Texas Legislature not to adopt HJR 77, or similar
proposals, to call for a convention under the terms of Article V of
the Constitution for the United States. I share most of the concerns
of its proponents. They hope an Article V convention might bring a
solution to these problems. It will not, and it presents a real
danger of making the situation much worse.
It doesn't work to demand a remedy
without providing the exact language of that remedy. Lawyers
perhaps the hard way, that filing a petition with a court and
for relief can lead to disaster, even if the judge decides in
favor, if one doesn't draft the order for the judge to sign. If
judge drafts it, or even worse, accepts the wording provided by
opposition, you may get a "win" that is really a loss.
The repeated mistake of reformers is
not to demand the exact language of the reform instrument. A vague
demand to others to "do something" for you will get those
others to do something to you.
What if a constitutional convention is
held and it is our adversaries that control it, and perhaps
enough of the state legislatures as well? Be careful what you ask
for. The proponents won't be among those who go to the convention.
See the attached Draft Amendments to
U.S. Constitution. The best approach is not to first call for a
constitutional convention, but to get task groups, perhaps
state legislators, to develop carefully designed proposals and
get many states to propose to Congress the exact identical
of these proposals from each state, then demand that Congress
them and send them to the states for ratification. This process
not run the risks of a constitutional convention, which could
completely replace the Constitution with one that would not
our rights, and then provide for ratification of it by a process
other than that prescribed by Article V.
proposals are designed to
focus and specify our demands for reform by putting each into
specific language. The “clarifying amendments" would mainly
overturn court precedents misinterpreting about 80 ambiguous terms
the Constitution. They could be effective in bringing reform even
not actually be adopted as amendments. They could pressure changes
practice by legislators, judges, and executive officials.
However we approach reform, if we want
the Constitution interpreted differently than it is now being
interpreted by judges and other officials, we have to unite in
stating the exact language of how we do want it interpreted, and
build a movement that can overcome resistance by Congress and
“reliance interests". A one-shot Convention won't do that, and it
would certainly not be able to actually draft competent amendments
during the Convention. There are fewer than 200 persons in this
country with the knowledge and skill to do that, and none of them
will be delegates.
I urge this Committee to substitute
language in the attached proposals for that of HJR 77, and resolve
that Congress adopt them and send them back to the states for