The first and probably the surest alternative can be found in Article V of our Constitution. Article V allows the States, as well as Congress, to initiate change to our Constitution with Amendments.
Article V states:
“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…”
James Madison has in the notes of the “Debates in the Convention of 1787” – he kept the notes – that the method of Congress to amend the Constitution was added after much debate, as the original method entered into the draft of the Constitution was the States method.
This is the note found in my copy of the “Debate Notes” added to the transcribed notes of the debate – it is unattributable.
This Preface has been printed from Madison’s original manuscript in the Department of State. There is a transcript of the Preface in an unknown hand in the Library of Congress which was sent to the printer and from which Henry D. Gilpin printed The Papers of James Madison, 3 volumes (1840). The text of the Preface as here printed has been read with the printer’s copy thereof and important differences noted.
If you research these notes by Mr. Madison, you will see that today’s handling, interpretation, and abuse of the Constitution is not in keeping with what was intended. Try the Yale Law School repository for the Debate Notes.
They fear this occurring, as it bypasses the federal government and Congress’ input. We will be told by progressives, that if we ever did this; and we have never done this; that we would create chaos and completely re-write the Constitution, even though the progressives want the current Constitution gone. Even conservative groups fear this “proposal” convention for the irrational fear that we would lose everything at a convention of chaos. This is far from the truth.
Congress, the President of the Senate and the Speaker of the House, after receiving a constitutionally limiting petitions from two-thirds of the State Legislatures to call a “Convention to Propose Amendments to the Constitution”, can propose whether ratification of Amendments from this convention occurs at the convention (likely not to happen, allowing those who propose amendments to ratify – Congress may very well require a separate convention for each state – added 12/27/2015) with three-fourths of the state delegations, or delegates as a whole, voting to ratify one or more Amendments, or by the traditional method of three-fourths of the State Legislatures ratifying one or more Amendments. Congress can propose either method; convention ratification or state legislature ratification, but it cannot interfere with the business of the convention.
Since the Constitution is silent on how ratification occurs at the convention other than to let Congress propose a method, the State Legislatures could appoint their delegates, and also stipulate whether their delegates vote as a block, with each state having one vote. As Congress will likely propose the ratification by State Legislatures method; ratification at the convention will probably never occur, unless the States force the issue in their petition.
Since no time frame is specified in the constitution for ratification, except what is codified in the U. S. Code, any amendment proposed by the States really should have its own sunset clause. If ratification by the thirty-eighth state does not take place by a specified date, the ratification process for that Amendment then fails. States, to provide added protection against a wholesale re-write of the Constitution, can instruct their delegation that a wholesale re-write may not be attempted and will not be ratified.
States can also place into the petition for such a convention a limiting provision. Petition the Congress to call, under Article V, a Convention to Propose Amendments and add that any amendment must be solely germane to providing the states with additional checks and balance over the federal government’s branches. Remember this, that only thirteen states NOT ratifying is the best firewall against a runaway or chaotic convention.
Ratifying states will send their certified official notice of ratification to the Archivist of the United States at the National Archives and Records Administration, pursuant to U.S, Code 106b. Upon receiving such notices from three fourths of the states, the Archivist will cause the Amendment to be published. There is no precedent for just how this would proceed, since an Amendment has never been proposed and ratified by the States.
To be successful, the goal of this convention must focus on restoring the checks and balance by the States over the federal government as it was in late December 1791, which was after the first ten amendments were ratified – the Bill of Rights.
Thoughts on What To Pass:
Any proposed Amendment that would attempt to negate the seventeenth Amendment, would face serious opposition to ratification. Opposing forces to this repeal or negation would whip up public sentiment claiming the states are attempting to take away the public’s right to vote directly for their U. S Senators. Perhaps an alternate to repeal of the seventeenth amendment nullification would generate much less public enthusiasm to stop the process. Rather, the delegates should concentrate on one or two proposed Amendments, which they should tightly define.
The focus of the States should be the now abused Commerce Clause, and more importantly the “constitutionalization” of state nullification.
A proposed and ratified “Checks and Balance Nullification Amendment” will allow the States to nullify laws and regulations passed by Congress, regulations of independent agencies created by Congress, regulations and Executive Orders issued by the Executive Branch regardless of what name is given to these, or any constitutionally related federal judicial decision, whether it is from inferior courts or the Supreme Court.
Nullification under such an amendment might be a two-step process. Each house of a state legislature would vote on a joint resolution to “nullify”. If sixty percent of the States pass a “for nullification” joint resolution, then the law, decision, or regulation is nullified. Nebraska, being a unicameral (having only one house) legislature would only need a resolution and not a joint resolution.
Enough about this author’s potential cures. If you now understand that something must be done or are unsure and want to learn more about the issues, the solutions, and the support behind this effort you need to visit the CONVENTION OF STATES website. It is filled with expert commentary. You might also visit a Mark Levin commentary on Article V and the issue at hand. Mark Levin is a renowned attorney, talk show host, and a constitutional scholar.
Read more about the ratification process at: