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Mixed Response to Article V in Committee Testimony

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Yesterday, the Senate State Affairs Committee heard

testimony on SJR 2 by Sen. Brian Birdwell, to call for a Convention of States under Article V of the United States Constitution.

Though they did not pass it out of committee, Senators on the committee seemed to be largely supportive of the bill and will likely vote it out next week. However, the Texans that lined up to testify were divided.

But what is an Article V Convention of the States?

The U.S. Constitution states the following in Article V:

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, 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 by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…”

1700’s legal jargon aside, it states that the States can ask Congress to call a Convention of delegates from all the states for the purpose of proposing amendments to the Constitution. Once amendments are proposed, they would be presented to the states for ratification.

Sen. Birdwell’s SJR 2, if passed, will serve as an official petition from Texas for Congress to call this convention. Texas will need to be joined by another 33 states with their own petitions. Birdwell believes this to be the last and only way for the States to reassert their sovereignty over the Federal government.

And while conservatives tend to favor strong states’ rights, they are certainly not united in their support of calling an Article V convention, and here’s why…

As you can see from the text above, the Constitution is silent on several important things, including among other things how the delegates are chosen, the scope of the delegates’ abilities, whether the convention will be private or open, and how proposed amendments are ratified.

Some opponents pointed out that George Soros, the billionaire Clinton donor accused of funneling money to paid protesters and rioters through left-wing non-profits, is pushing for the convention. His groups would like to see several “outdated” provisions such as the Second Amendment repealed, and to reshape the Constitution in a more “progressive” construction.

But high profile proponents on the on the Right, such as radio personality Mark Levin and Texas Governor Greg Abbott, believe the Convention is really the only way to bring term limits and fiscal restraint to reality.

Right now, Republicans control 2/3 of the Federal government, 32 state legislatures, and 33 governor’s offices. So conservative proponents believe an Article V Convention would be controlled by Republicans and the amendments it proposes would be more conservative in nature. But even they acknowledge that one day the tables could turn and a convention could be controlled by the other party. They do not believe this to be a danger, however, as it only takes 13 states to kill an amendment in the ratification stage.

On the selection of delegates, conservative opponents say the delegates would likely be chosen by the state legislature which they argue is full of moderate Republicans. Indeed, Sen. Birdwell has a bill, SB 21, which requires the delegates to be sitting state legislators at the time of the call.

A favorite line of opponents seems to be, “If Congress and the President don’t obey the current Constitution, what makes you think they’ll obey it any more if you amend it?”
The greatest opposition seems to come from those fearing a “runaway convention” in which the delegates could propose a whole new Constitution altogether.

Proponents argue this is an unfounded concern as the delegates can be legally bound to the limited scope of proposing amendments. SB 21 would attempt to do just that.

But ultimately, there is no precedent for such a Convention. Article V has never been activated in our nation’s history. While both sides argue about hypotheticals, no one really knows what could happen.

The last time a convention was called was 1786 when the States were still joined by the Articles of Confederation. The delegates of that convention were limited to fix the Articles, not create a new government. As we all know, they instead called a Constitutional Convention and created the Federal system.

While Abbott and Levin might be the Right’s pro-Convention champions, the Right also has some high profile champions against the convention.

The late Phyllis Schlafly of Eagle Forum has been fighting this for decades.

Supreme Court Justice Antonin Scalia, among the court’s top 2 most conservative justices before his death, said, “I certainly would not want a Constitutional Convention. I mean whoa. Who knows what would come out of that?”

***UPDATE: The resolution was passed on to the Senate Calendar on the 21st of February.

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