January 2019 Newsletter

This month…

  • Feature Article:  An Interview with Attorney John Cogswell  On Why Enough Article V Applications Already Exist to Justify the Calling of an Article V Convention
  • When SCOTUS Started Killing Federalism
  • A Progressive View of Calling an Article V Convention
  • Roman Buhler Pushes ‘Regulation Freedom Amendment’
  • ERA… The Proposed Amendment that Will Not Go Away
  • Two New Books by Constitutional Scholars
  • News Related to a BBA/Federal Fiscal Restraint
  • Divide and Be Defeated… or Follow Madison’s Words

An Interview with Attorney John Cogswell 
On Why Enough Article V Applications Already Exist
to Justify the Calling of an Article V Convention –
John M. Cogswell is not a widely recognized name within the Article V movement.  The 79-year-old Cogswell is an attorney living in Buena Vista, Colorado.  He is a graduate of Yale University and Georgetown Law Center, who has appeared before the US Court of Appeals for the District of Columbia, US District Courts in Colorado, Kansas and the District of Columbia, and the Supreme Courts of Colorado and Kansas.Cogswell has been practicing law for 48 years.  He has been civically and politically active, and in 2011 he formed a group known as Campaign Constitution, focusing on the citizen powers locked up in the fifth Article of the US Constitution.During this past year, at the request of the new American Constitution Foundation (ACF), Cogswell invested more than 250 hours reading and carefully studying state applications for a convention to propose amendments as listed by the Article V Library (a feat very few other legal minds have attempted).He also studied the extensive research and writings of respected constitutional scholars Michael Stokes Paulsen and Robert G. Natelson… and related works by James Kenneth Rogers, Charles L. Black, Jr., Thomas M. Durbin, David C. Huckabee, and Yale constitutional law professor Akhil Amar.His objective was to analyze a recently completed study done by ACF that concluded that there currently are 37 valid applications for an Article V convention for proposing amendments.  He compared the ACF study to a recent report by Natelson that concluded there are at least 33 existing applications that could be aggregated to justify the calling of a BBA-focused Article V convention.

In 2011 Paulson issued an opinion that at the time there was 33 valid current applications.  Cogswell then used Paulsen’s model (basis for counting aggregable state applications) and concluded that recent additions (after deducting rescissions) bring that number to at least 36… toward the 34 needed to trigger a Congressional Call for a plenary Article V convention to propose amendments.

Cogswell recently issued his legal opinion that a willing Congress could easily find sufficient state applications to justify an immediate Call for a convention of states under the terms of Article V.  His 39-page (plus numerous pages of appendix documentation) opinion is not exactly bedtime reading, but should be read and studied by every state legislator, Article V activist, and member of Congress.  Download and read Cogwell’s opinion HERE, and his documentation Appendix HERE.

In a recent interview with Mr. Cogswell he made the following comments:
“My opinion (linked above) is intended to bring together the disparate views that exist (between constitutional scholars and activists in the Article V community).  We have to bring these scholars and organizations together as one (with one consistent voice).  If we continue to argue about what Article V means, we will never get a convention.  Simplicity is absolutely requited or we will go nowhere.”   

Asked what he believes the American people might do if Congress refuses to call an Article V convention once presented with proof that 34 legitimate applications have been shown to have been made, Cogswell said: “You know Congress would never propose amendments itself (like those currently being called for by American citizens), because it is corrupt… otherwise we would never have the debt we have in this country.  We feel the polarization that is going on.  We need to get the American people motivated to support use of Article V as a civil way to make governance corrections.”

Cogswell offered the opinion that “If we are not able to use Article V (to resolve our nation’s governance shortcomings) we are going to have major civil disobedience.  This is very serious business.  The average life of a civilization is about 250 years, and we are rapidly approaching that limit.”

When SCOTUS Started Killing Federalism –
Bob Livingston wrote a thoughtful piece in the December 6, 2018 edition of The Abbeville Review entitled The problem with lawyers and the Constitution.  The Review is self-described as “a publication of The Abbeville Institute, a 501(c)(3) nonprofit organization devoted to a critical study of what is true and valuable in the Southern tradition.”

While the underlying topics of the article are nullification and secession, the author makes some very good points about how the Supreme Court has upended many key principles expressed by the Founders when they drafted the US Constitution.  He says, “State sovereignty is ignored because of the ineptitude of the legal education system.”

He also notes that “The made-up incorporation doctrine has been the chief mechanism through which a one-size-fits-all form of government, with all rights and powers emanating from Washington, D.C., has arisen. It has been the springboard from which our Constitutional Republic has been systematically dismantled.”  Read his piece HERE.

A Progressive View of Calling an Article V Convention
During December, Jurist (a publication self-described as “Legal News and Research – A collaboration with the University of Pittsburgh”) carried a guest column entitled A Progressive Call for a Constitutional Convention by Roy Ulrich, of the University of California, Berkeley.

The piece includes some inaccurate facts and a questionable understanding of the foundation of Article V… but at least it reflects some perspective that so-called Progressives have about the potential bi-partisan benefits of an Article V convention.  It can be read HERE.

Roman Buhler Pushes for a ‘Regulation Freedom Amendment’
Roman Buhler is an attorney and the Director of a group he calls The Madison Coalition.  He has attended many Article V-related events over the past several years, although he is not really part of any of the groups seeking to use the second option in Article V.  Buhler works mostly on efforts to get Congress to propose certain constitutional amendments.

Mr. Buhler’s current primary focus is on getting Congress to propose the Regulation Freedom Amendment, a provision that would require that major new federal regulations be approved by Congress.  He recently announced that US Senator David Perdue has endorsed his proposal.

The proposal reads: “Whenever one quarter of the Members of the U.S. House or the U.S. Senate transmit to the President their written declaration of opposition to a proposed federal regulation, it shall require a majority vote of the House and Senate to adopt that regulation.”

Rather than using the states’ “convention to propose amendments” provision in Article V, Buhler travels from state to state lobbying legislators to adopt resolutions “urging” Congress to adopt (propose) the amendment.  He reports that some two dozen states have adopted his requested resolution.  More details are available HERE.

ERA… The Proposed Amendment that Will Not Go Away
Congress proposed the Equal Rights Amendment (ERA) in 1972.  By the proposal’s self-imposed deadline in 1977 only 35 states out of the needed 38 had ratified the proposed constitutional amendment.  Congress then purported to extend the ratification deadline by another five years.  During that time no other states ratified it.

In 2017 the Nevada legislature adopted a measure to ratify the proposed constitutional amendment.  In 2018 the Illinois legislature also purported to ratify the ERA.  The two states consider those to be the 36th and 37th ratifications (although since 1977 four or five states have taken actions to rescind their earlier ratifications).

Now comes Missouri.  According to the Joplin Globe a group calling itself ERA38 has formed in an attempt to get the 2019 session of the Missouri legislature to belatedly adopt a ERA ratification resolution.  The measure was actually approved in 1975 by the Missouri House, but the Senate has consistently declined to ratify the ERA.

Missouri State Senator Jill Schupp has filed a resolution that would ratify the ERA every year since 2015 when she said, “Amending the Constitution would provide bedrock protection for women to permanently have the same rights and opportunities as men.” 

This coming session the newly organized ERA38 plans to work closely with Senator Schupp.  Read the detailed Joplin Globe article HERE.

Readers who are interested in this topic should also read “Let’s not waste time reviving the zombie Equal Rights Amendment” by constitutional historian Rob Natelson.  It was published in The Hill on November 6, 2017 and can be found HERE.

Two New Books by Constitutional Scholars
The Law of Article V is a newly released book by Professor Robert G. Natelson.  Described as “primarily a work for attorneys”, it is a book that will answer most of the questions American citizens and legislators have about the fifth Article of the US Constitution.

Natelson, described as “America’s leading active scholar on the constitutional amendment process” uses his new book to demonstrate how Americans can fix the broken federal government by using the constitutional provision the Founders provided.  The 136-page paperback book can be purchased HERE.

—–

Harvard Professor Lawrence Lessig is considered an expert on constitutional law and has often opined on Article V issues, but his newest book is much broader.  His new book, America, Compromised discusses what he describes as the increased levels of corruption permeating the fabric of America.

While the book is not entirely government-focused, Lessig clearly believes Congress is corrupt, even as he expresses his opinion that the overwhelming majority of members of Congress are not.  Buy his book HERE.

  • News Related to a BBA/Federal Fiscal Restraint:

Leader of Blue Dog Coalition Supports a BBA –
In late November members of the Democrat Blue Dog Coalition elected US Congresswoman Stephanie Murphy as their leader for the 116th Congress.  The stated mission of the Coalition “is to find commonsense, bipartisan solutions that will get our country’s fiscal house in order and ensure a strong national defense.”

Rep Murphy was the first Democrat to introduce a balanced budget amendment during the 115th Congress.  Her bill was endorsed by the Blue Dog Coalition.  Read more about her HERE.

South Dakota Governor Lauded for Fiscal Restraint Measures –
During December the Associated Press produced an article about Dennis Daugaard the retiring governor of South Dakota.  Daugaard was credited with orchestrating a massive cut in state spending to erase a budget deficit early in his first term and then championed less popular tax hikes in his second term.

He was also credited for successfully urging voters to adopt a balanced budget amendment to the state’s constitution, an action which helped the state achieve an AAA credit rating.  Although the article did not mention it, during Daugaard’s leadership the South Dakota legislature adopted one of the 28 existing applications for a BBA-focused Article V convention.

Interestingly the Daugaard story was carried in the Idaho Statesman where their legislature has twice defeated efforts to adopt an application for an Article V convention that could lead to fiscal restraints at the federal level.  If the article is still posted, read the Statesman article HERE.

Mulvaney Spoke at ALEC Confab about Importance of a BBA –
A month before Mick Mulvaney was appointed as President Trump’s Acting Chief of Staff he was a guest speaker at the 2018 ALEC States and Nation Policy Summit in Washington DC.

Speaking then as Director of the Office of Management and Budget (OMB), Mulvaney told the state legislator attendees, “Our government does not work very well at the federal level … We need your help.”

He went on to say, “Spending is not going to solve itself,” and then he stressed that every time a state legislature adopts a balanced budget amendment to its own state constitution it sets an example for the federal government.  “The more you folks (at the state level) put those fiscally responsible principles to work, the more influence you can have over (the federal government).”  See and hear Mulvaney’s presentation HERE.

Young Americans Care About the National Debt Too –
In late November The Wake Forest Review (Wake Forest University – Winston-Salem, NC) published a piece pointing out to its student readers that “The United States has a severe problem with spending and deficits – two things that have only grown since the new millennium, regardless of the presidential administration or party.”

The student writer said, “The issue is that we cannot continue to spend without taking into consideration the ramifications of debt.  One day it may even be insurmountable if the proper steps are not put in place to balance the budget soon.”

The young writer concluded by saying, “A Balanced Budget Amendment is necessary to place a constraint on our elected officials – to reinforce that one of their primary responsibilities is to spend taxpayer money appropriately, without putting the country’s future further into an almost insurmountable debt.”  Read the article HERE.

Earlier in the year that same student publication carried a piece entitled Up to Us Campaign Takes on National Debt.  It detailed efforts by a relatively unknown group of college-age Americans operating under the name Up to Us.  The organization is co-sponsored by the Peter G. Peterson Foundation, Net Impact, and the Clinton Global Initiative University.

Up to Us is described as “a rapidly growing, nonpartisan movement of young people who are passionate about raising awareness on the debt.  Since its inception … Up to Us has engaged nearly 150,000 people through over 400 college teams.”  Read this article HERE.

Other college students are working on such things as limiting the terms of political leaders.  That’s one of the topics, hosted by US Term Limits, that will be addressed at LibertyCon, a conference of students from around the world, operated by a group called Students for Liberty January 17-19, 2019 at the Marriott Marquis Hotel in Washington, DC.

Divide and Be Defeated… or Follow Madison’s Words –
Blogger Rodney Dodsworth has just released a reminder of James Madison’s words in 1787 when he wrote what became known as the 14th Federalist Paper.  They are words that every legislator (state and federal) and every Article V activist should read and consider.

Madison writes about the question as to whether liberty can be preserved across a continent.  He challenges readers to not listen to naysayers, and to consider the blessings of America’s special kind of republic.

Dodsworth says, “As pundits and patriots today wonder if resolution of the centrifugal forces that threaten the American Union is possible, perhaps we can find solace in the words of James Madison.”  Politics involves compromise.  Hopefully both political leaders and the leaders of Article V movements can benefit from Madison’s words to look beyond the shrill voices of disunity and find compromise where needed.  Read Madison’s words HERE.

Thoughts Worth Considering –
“The fears sometimes expressed about giving Article V
its natural reading are fears that,
despite Article V’s very difficult gauntlet of formal hurdles
and abundance of procedural checks,
the amendment process will be too easy
and too much out of the hands of Congress or the courts —
that is, too much in the hands of the People themselves,”

University of Minnesota Law School Associate Professor of Law Michael Stokes Paulsen,
December 1, 1993

 

“I strongly support term limits
for members of the United States Congress.
I believe it would return the government closer to the people.”

George HW Bush in 1992

 

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