“THEY HAVE TO RESPOND”
by Sharon Rondeau
Article V stipulates that in order for a convention to take place, two-thirds of the existing states must file a request for one. Following such a convention, three-quarters of the state legislatures must approve any proposed amendment resulting from it.
Historically, the ratification of constitutional amendments has at times taken several years. The last amendment to be passed, the 27th in 1992, took nearly ten years for the required number of states to ratify it.
During our interview, Sibley differentiated between an Article V convention and a constitutional convention, sometimes called a “con-con,” explaining that there is no provision for a constitutional convention such as that which was held in 1787 to recur. “There’s no provision to allow for such a thing,” he said. Rather, an Article V convention is an alternate means of proposing constitutional amendments to the method previously used wherein Congress, by a two-thirds vote, approves a proposed constitutional amendment and then sends it to the 50 state legislatures for their consideration.
A former attorney, Sibley filed the lawsuit pro se last week, as detailed on his blog, Amo Probos. Sibley traces his ancestry back to founding father George Mason of Virginia, an Anti-Federalist who actually did not sign the final draft of the U.S. Constitution. Mr. Sibley was named after his great, great grandfather, Montgomery Blair, who served as postmaster general under Pres. Abraham Lincoln, whose assassination occurred on this day 150 years ago.
Having received no response to a March 5, 2015 letter sent to Speaker of the House John Boehner and Senate Majority Leader Mitch McConnell informing them that a quorum of state legislatures calling for an Article V convention had been met, Sibley filed the lawsuit naming the two congressional leaders as defendants. He spoke with The Post & Email at length regarding the purpose and scope of an Article V convention as he sees it and addressed several unanswered questions given that an Article V convention has never been held in the nation’s nearly-239-year history.
As explained in Part 1, Sibley envisions that delegates from each state to the convention could propose, discuss and then vote on one or more amendments, at which point any approved proposals would be sent to the state legislatures.
The National Archives details the modern constitutional amendments process:
The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. The original document is forwarded directly to NARA’s Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States which includes formal “red-line” copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.
The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.
A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed.
While Sibley is awaiting a response from Boehner, McConnell, the U.S. Attorney for the District of Columbia and the U.S. Attorney General during a 60-day period, he told The Post & Email that he believes his lawsuit will ultimately “end up at the U.S. Supreme Court in the next 6-9 months.”
The following is the remainder of our discussion of an Article V convention of the states.
MR. SIBLEY: They’re the ones entrusted with that very duty: to explain what the Constitution means. We have a right to be secure in our person, papers and effects. They put the flesh on the bones by telling you, “Yes, a police officer can kick your door down” or “No, he can’t.” That’s their job, and this case presents them the opportunity to do their job and tell us what that Article V convention would look like and what it can and cannot do.
THE POST & EMAIL: What is your underlying reason for advocating for an Article V convention at this point in our history?
MR. SIBLEY: Well, thank you for asking that, because that really is the question. I believe our federal legislators – our Congress – have abdicated their responsibility to the people and are bought and paid for by special interests. There are many people who agree with that lock, stock and barrel. I believe the judiciary has completely abrogated its role to ensure the rights of individuals and the rule of law, and I believe the executive is so bound up by those same special interest groups which put them in power and keep them in power, as the Democrats and Republicans play ping-pong back and forth in their relative roles in D.C., that we no longer have the ability through the normal legislative, executive and judicial processes to take control of our own republic.
That is why George Mason said it: We have to have a way for the states to control this federal government, and the only way we can do it is if the states step up and demand their convention, propose the amendment to limit federal power and ultimately have three-quarters of the states approve it so that we rebalance the power in this country where it belongs, which is with We the People.
THE POST & EMAIL: Would the state legislatures vote to approve any amendment, or would it be the people of the states?
MR. SIBLEY: The state legislatures. We’ve amended the Constitution 27 times; this is not a new process. All 27 times came from Congress proposing the amendment. This is just a different way of doing so, not from the federal government’s viewpoint, but from the states’ viewpoint. After that, it’s submitted to the state legislatures for a vote.
THE POST & EMAIL: Supposing the convention takes place and an amendment to limit the scope and power of the federal government is then passed by three-quarters of the state legislatures. What convinces you that the federal government would adhere to the language of that amendment?
MR. SIBLEY: Dare they do otherwise, honestly? What if the amendment is that you have to have 7,000 members in the House of Representatives, one for every 30,000 citizens? Are they going to say, “No, we’re not going to do that?” The people would go ballistic…three-quarters of the states have insisted on that and Congress is going to ignore it?
THE POST & EMAIL: If an amendment to curtail the federal government’s power were passed, would they begin by slashing departments and programs? Would they listen? It brings to mind The Post & Email’s coverage of Tennessee judicial corruption wherein the judges have been ordered to do things by the legislature, and the judges simply ignore it.
MR. SIBLEY: I think we’re moving to a different kind of rebellion at that time, but let’s not go there yet.
THE POST & EMAIL: So perhaps encouraging the states to step up and take an active role in this is the way to make it happen.
Honestly, I don’t know that any judge is going to listen to me. They’re probably going to throw me out early and often, which is why I think it will get to the Supreme Court pretty quickly. If that’s the result, well, then at least I’ve done all I can do and proved that maybe it’s time to become more aggressive in insisting that we have the rights that we do.
THE POST & EMAIL: If the convention were to occur, do you think anything should happen with defining the “natural born Citizen” clause of the U.S. Constitution?
MR. SIBLEY: My favorite question. I don’t know if you saw the Harvard Law Review article that came out last month?
THE POST & EMAIL: Oh, yes, I read it and have referred to it many times in writing about Cruz and Rubio…
MR. SIBLEY: I’m working on a response to that Harvard Law article.
THE POST & EMAIL: That will be fascinating.
MR. SIBLEY: I believe deeply in the wisdom of the crowd; that is, if three people are making a decision, it’s probably a bad one…If 3,000 people are making a decision, ultimately you get a better decision. I believe that with those kinds of issues, such as “natural born Citizen,” maybe we should have presidents who are still citizens of Chile or Russia or North Korea, or whatever…but I don’t think the wisdom of the crowd is going to allow that. If you have an Article V convention, those very issues can be raised, addressed, and hammered out into an amendment which reflects the will of the people and what the standard should be for a “natural born Citizen,” for example.
The last really great convention occurred in 1856 in Pittsburgh, PA, when the Republican Party was founded to fight slavery, and the person who gaveled and chaired that convention was actually my great-great grandfather, Francis Preston Blair. So I’ve always felt a little bit of a call that maybe I’m supposed to help call another convention together to address the most serious issues of our day, which is another kind of slavery; not the bondage slavery of the 19th century, but the economic slavery into which our citizens have been placed by the powers that be that keep sucking more and more out of the people for the special interests.
THE POST & EMAIL: If after the 60-day period passes for the U.S. Attorney in D.C. and the Attorney General to respond, you haven’t heard anything, what happens next?
MR. SIBLEY: Technically, I could go in and move for a default, but we’re going to hear something; they know they have to respond. They have to respond; it’s a letter they can’t ignore this time, backed up by the court system.
THE POST & EMAIL: Is there anything else you think should be brought up at an Article V convention other than reining in the federal government?
MR. SIBLEY: I don’t believe it should be an “issue” convention. This is a personal opinion now. I don’t think it should decide abortion or gun control. I think it needs to address the structure of the federal government; for example, limiting the number of representatives to 30,000 constituents so that in fact, you have 8,000 representatives in the House, and return the Senate to election by the state legislatures, not direct popular vote [as resulted from the passage of the 17th Amendment]. I think those are two crucial things to bring the legislatures back in touch with the people and make the Senate responsible for the states the way they used to be rather than the special interests.
THE POST & EMAIL: So a new amendment could repeal a previous amendment.
THE POST & EMAIL: So a proposed 28th Amendment to the Constitution could repeal the 17th Amendment?
MR. SIBLEY: That’s right, or adjust Article I so that the Congress won’t determine how many congressmen there are but the Constitution will by saying it’s done by postal district, contiguous postal code to a limit of 30,000 per representative. It would eliminate all the gerrymandering that’s going on, all the special-interest districts that have been set up to appease one power group or another, and it’s something that makes objective, rational sense.
We could also remove the idea of “discretionary jurisdiction” from the judiciary so that they can’t decide whether or not they’re going to decide a case; they would have to decide everything.
The Post & Email will provide an update on Mr. Sibley’s case when it becomes available.