KEN CUCCINELLI ON A CONVENTION OF THE STATES

constitution1.pngAs one of Virginia’s most respected Conservatives and a legal scholar of note, Ken Cuccinelli opinion on a Convention of the States should carry some weight.  So here it is from the Cuccinelli Compass dated 02/01/2015.

The Controversial Convention of States‏

Dear Friend and Fellow Virginian,

One of the most unique and important discussions among constitutional conservatives is taking place right now in Virginia’s General Assembly.  It is the debate about whether the states (including Virginia) should exercise their rights to call an Article V Convention of States for the purpose of proposing amendments to the U.S. Constitution to limit the power of the federal government.

While I have good friends whom I respect on the other side of this debate, I support the effort of the states to call such a convention and I wanted to share my reasons with you.

I would note that there is a body that sits for nine months every year, “defining” our constitution, and sadly it seems to regularly undermine the original meaning of that sacred document… always seeming to grow the power of the central, federal government.  We call this body The Supreme Court of the United States.

We can continue to idly watch the Supreme Court and the federal government eat away at the constitutional foundation of this country, or the states that founded it can make an effort to limit the runaway growth in the power of the federal government.  Frankly, I don’t see – nor has anyone suggested to me – a viable alternative to the Convention of States.

The usual argument: ‘we just have to elect people who will rein in the federal government’ has not worked.  I would note that the Founding Fathers expected to be disappointed, and they tried to design a governmental system with checks and balances to curb the natural excesses of mankind, including a way to rein in the federal government when it got out of control.

Virginia’s General Assembly will vote to take the first step to rein in our runaway federal government in the next few days.  Your support is urgently needed!  The vote looks like it’s going to be very close.

Our Founding Fathers gave the states a method of proposing amendments to our Constitution to rein in the power and jurisdiction of the federal government.  Proud Virginian George Mason insisted that one day the federal government would outgrow its bounds, and when that day came, the states would need to have the ability to amend the Constitution to limit the power of the federal government.  An Article V Convention of States is the specific recourse he and our Founders put in the Constitution for that purpose.

I’d like to ask you to stand with George Mason and our Founding Fathers and tell your Virginia legislators to support HJ 497, HJ 499, and SJ 269!

Here are 3 Simple Facts that I Think Opponents are Getting Wrong:

  1. The States Control the Convention Process

A Convention of States was put in the Constitution for the express purpose of giving the states a way of limiting the federal government.  Under Article V it takes 34 states to start the convention process.  Then the states appoint the delegates to the convention.

No matter what Congress would like to do to influence or attempt to ‘control’ the convention, they have no authority to do so.  The convention can ignore anything Congress ‘says’ about the convention.

Finally on this point, and in my mind critically, 38 states have to ratify any proposals coming out of the convention before they become part of the Constitution – this is our ultimate ‘backstop.’  Put another way, at a time when Republicans control more state legislative chambers than ever before in my lifetime, only 13 legislative bodies (e.g., only the House of Delegates, even without the Senate, on behalf of Virginia) may block ANY proposed amendment.  Blocking votes are the most important, and there are more conservative states than liberal states; additionally, Republicans control approximately double the number of state legislative chambers across the country as Democrats right now.  That’s as good a backstop as we’re going to get – and don’t forget, the Supreme Court is out there whittling away our constitution and increasing the power of the federal government even as we debate this question.

The process is state-driven from beginning to end, and has numerous checks and balances to ensure its safety.  Our Founders knew what they were doing.

  1. Virginia is focusing on Amendments that Limit the Power of the Federal Government.

HJR 497 only allows a convention to consider amendments that will limit the power of the federal government.  HJR 499 only allows a convention to consider a balanced budget amendment.  This can be reflected in the qualifications of Virginia’s delegates. Your rights under the First, Second, or any other Amendment are not ‘up for grabs’ (compare that to the Supreme Court)!  The only people who need to fear a convention are the politicians and bureaucrats in Washington, D.C.

Remember, Virginia’s General Assembly will decide how delegates to a convention are selected, and while there are no absolute guarantees here, Virginia does have significant control of its delegates and a solid backstop in place.

  1. Who does and who does NOT support a Convention of States:

Opponents often accuse us of being supported by the likes of George Soros and Moveon.org.  This is not the case.  Have you ever heard any of them back it (I mean quotes from THEM, not someone who opposes it telling you ‘George Soros wants it’)?  Go look at their websites.  You will not find such support anywhere.

I’ve even heard things like ‘the NRA opposes it.’  If so, my understanding is that their lobbyist in Richmond is unaware of that fact… draw your own conclusions.

A wide range of conservatives support this effort, including people like Governor Bobby Jindal, Prof. Randy Barnett – the leading academic in the opposition to Obamacare, Mike Farris, Mark Levin, Glenn Beck, David Barton, Colonel Allen West, Senator Ron Johnson, and Retired Senator Tom Coburn, just to name a few.  Countless other conservative leaders also support this effort.

I should note that I have never seen an issue that sees so many good conservatives on both sides.  But I want to ask you to stand with our Founders and the countless conservatives who have joined this cause.  Please contact your state legislators in the Virginia House and Senate and tell them to vote in favor of HJ 497, HJ 499, and SJ 269.

You can find out who your state legislators are here: http://whosmy.virginiageneralassembly.gov/

For liberty,

Ken Cuccinelli, II

News and Blog Articles

16 thoughts on “KEN CUCCINELLI ON A CONVENTION OF THE STATES

  1. When did Ken Cuccinelli achieve the status of “legal scholar of note”? I think his general reputation, both inside the Bar and out, is that of a Northern Virginia politician. If you’re looking for legal scholars, you might try again. It’s not a small field and contains quite a wide range of viewpoints. I think KC’s letter might have had more substance if he had cited a few scholars (he notes that there is no consensus among conservatives on this issue), as opposed to say, Glenn Beck. I do have a very high regard for now retired Senator Tom Coburn, but he’s a Medical Doctor, not a constitutional expert.

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  2. There is a movement among some conservatives to install an Article V convention. Mike Church, though I enjoy his show and commentary, favors an Article V convention, but I vehemently oppose. In today’s political climate, I do not trust an Article V convention, nor proposed amendments by the U.S. Congress. Besides, an Article V convention is pointless. (I presume these conservatives never read Federalist No. 45.) The complaint among these conservatives is the General Government is too bloated and thus provisions must be added to the federal constitution to restrain the General Government. I agree the General Government has plainly overreached its constitutional boundaries, but an Article V convention is not going to solve the issue. The several States may disregard unconstitutional measures via Amendment X. I do not understand why the several States do not take advantage of Amendment X more often.

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    1. Matthew — Do you really want to agree with scout about anything except the time of day?
      😆

      The Convention of the States is not a surefire solution. It is in fact risky. The problem is that our society is unraveling. We are losing control.

      The founders designed a system of checks and balances. The states were intended to be a check on the Federal Government. The Civil War and several constitutional amendments have broken the ability of the states to check the Feds.

      The basic problem is that the Federal Government has become powerful enough to both bully and buy off opposition. Look at the Federal Budget. Most of it is social spending. As citizens, we are selling our birthright just for the privilege of receiving our own money back to us. That’s crazy.

      A Convention of the States could serve two purposes.
      1. Repeal or restrict those constitutional amendments that have given the Federal Government too much power.
      2. Stimulate interest in the public in learning how our government is supposed to work.

      Check out https://citizentom.com/2013/08/06/why-do-we-fear-a-constitutional-convention-reblogged-from-aurorawatcherak/

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  3. This is a subject on which my views are not fully formed. By conservative instinct, I tend to be fairly close to Matthew on this one. As a an avid and enthusiastic defender of the 1787 constitution, I worry that we would lose much of its genius brilliance were we to convene a convention, the limits of which might be hard to control. It also strikes me that all or most of the complaints leading to this idea of an Article V convention are complaints about not having prevailed in a political context. The way to fix that is to stay engaged in the political context. It reminds me, to some degree, of efforts to shrink the voting rolls to eliminate demographics that tend to vote against us, rather than trying to convince more people who feel as we do to vote.

    Having said that, I continue to study this issue. Keith makes excellent points, as do other advocates. I have an open mind. To me it is not fatal that Glenn Beck and Sarah Palin support the idea. I am willing to ignore that.

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    1. As a an avid and enthusiastic defender of the 1787 constitution, I worry that we would lose much of its genius brilliance were we to convene a convention, the limits of which might be hard to control.

      Scout, can you explain exactly how you envision this coming about?

      ==============/ Keith DeHavelle

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    2. By conservative instinct, I tend to be fairly close to Matthew on this one.

      Knowing our differences, Scout, this made me chuckle. 😉

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      1. The only difference of which I’m aware, Matthew, is that you believe the Bible to be a literally true historical document and I think of it as partially historical, partially symbolic, but, without a doubt, an amazing document that we are very fortunate to have. I can’t think of any other document that is approximately 3,000 years old (at least the oldest bits) that is read so widely around the world.

        Despite our differences about the Bible, it seems that they would not have much impact on our assessment of constitutional issues.

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  4. I’m sorry but it appears that there’s always an underlining blame of Lincoln Republicanism the Reconstruction amendments for the administration state. The South was the agent of its own demise, and it’s arrogance with trying to uphold their pseudo constitutional right to hold humans in bondage. They overreached with Kansas-Nebraska Act (The idea of popular sovereignty without blacks having a vote whether those states were free states, a gross hypocrisy),Bleeding Kansas, and Dred Scott. When the Southern states seceded from the Union after Lincoln was elected; they sealed their fate. The 13th-14th amendment has castrated the 10th amendment in the south’s obstinate belief it actually had a constitutional right to keep people in chains and create an Aristocratic society was its undoing.

    Those amendments were created to eliminate the tyranny of state government. It grew the power of the federal government, but the culprit was the south’s avarice.

    But I concur that Article V would probably due more harm than good.

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    1. I don’t have anything against Lincoln Republicanism. I think 13th and 14th Amendment suffer the same defect as the rest of the Constitution. We have let our officials interpret the Constitution to empower themselves at the expense of the People.

      What happen at the end of the Civil War is that Federal officials started telling us that state’s rights were bad. Even though the Northern States fought slavery based upon state’s rights (Dred Scott decision), the succession of the South took place under the window dressing of state’s rights.

      The particular constitutional amendments I object to are the 16th and the 17th.

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      1. What would you propose to substitute for a federal income tax if we were to determine that the existing authority should be repealed?

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      2. What I was asking is specifically how you envision what you’re concerned about actually happening. Here was your concern:

        As [an] avid and enthusiastic defender of the 1787 constitution, I worry that we would lose much of its genius brilliance were we to convene a convention, the limits of which might be hard to control.

        So, what steps do you envision that would cause convening a convention [to propose amendments] to lead to losing the “genius brilliance” of the Constitution? (The quotes around that description are simply because they are your words, but I agree with the expressed opinion of the Constitution.)

        It seems to me that no change to the Constitution can happen unless 37 states duly ratify such change. The convention itself going “out of control” (a phrase I see bandied about in this context) would matter little if even 14 states don’t go along with the joke. Many of State Senator Black’s bullet points develop bullet holes due to this one fact, specifically his doing away with one-state, one-vote on the ratification process.

        One conceivable though absurd scenario is possible: The initial proposed amendment has the effect of “Article V is amended so that in the future only left-leaning states get a vote on ratification.” Then, after it is ratified, a bunch of new amendments follow that suit the only states that get a vote. But this initial amendment itself would not be able to take advantage of its own proposed change; it would still need 37 states to ratify. And it seems … unlikely to pass.

        But do you see some other way by which an amendment can take effect — or some other process that holds the danger you perceive?

        ==============/ Keith DeHavelle

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  5. I think, Keith, that Article V is fairly clear on how the convention would come about. I have read discussions on both sides on the degree of control which could be exercised over the issues it addresses, and whether such controls could be confined to the discretion of the States or would be imposed, either jointly or independently, by Congress. Those are issues that I am enjoying learning about at present. There has been, by the way, an interesting and generally substantive discussion of these issues at the “Bearing Drift” site recently.

    To me, however, at least for now, the question is why such a convention is necessary. It strikes me that the concerns raised by advocates really relate more to policy than to constitutional structure and can be achieved at the ballot box. The convention idea looks somewhat to me like an act of frustration over not prevailing in policy and political discussions.

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