A Simulated Article V Convention is happening in Williamsburg, Va, This Week. What is An Article V Convention?

This week in Williamsburg, Va, Citizens for Self-Government is hosting a simulated Convention of the States to propose amendments to the Constitution under Article V of the Constitution. Their mission is –

[T]o urge and empower state legislators to call a convention of states. The delegates at such a convention would have the power to propose amendments to the Constitution that would curb the abuses of the federal government. Article V of the Constitution gives them this power; the COS Project will give them an avenue through which they can use it.

Article V of the Constitution includes a provision that “on application of two-thirds of the several States,” Congress “shall call a convention for proposing Amendments.”

Supporters of Article V conventions have mounted vigorous (and yet unsuccessful) campaigns in the past (reaching a peak of interest in the 1960s through the early 1980s) on a range of issues including: restrictions on abortion, apportionment of state legislatures, and a federal balanced budget. None of these campaigns attained the necessary applications from two-thirds of the states. Indeed, we have never adopted a Constitutional amendment using an Article V convention. All 27 of the Constitution’s amendments adopted since 1787 came from Congress and not from applications of the states (Article V provides that whenever two-thirds of both Houses of Congress “shall deem it necessary, shall propose Amendments to [the] Constitution.”)

In recent years, in response to congressional deadlock, there has been a renewed interest in Article V conventions from groups across the political spectrum. Groups on the right like Citizens for Self-Government are interested in the balanced budget requirement and restrictions on federal governmental authority. On the left, there is an interest in calling an Article V convention to repeal the Supreme Court’s decision in Citizen United.

So why haven’t Article V conventions worked in the past?

The main reason is the Constitution’s requirement that a super-majority of two-thirds of the state legislatures must apply for an Article V Convention.

But there’s a reason for this stringent requirement, as James Madison discussed in The Federalist No. 43.

“It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults.”

What happens after Amendments are proposed?

Article V reads in relevant part that “Amendments . . . 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.”

What this mean is that amendments proposed by either Congress or an Article V Convention must be ratified by the legislatures or special conventions in three-fourths of the states (38 total today). Furthermore, Congress has the authority to choose the method of ratification in the states. The options are ratification by state conventions called specifically for considering ratification of amendments, or ratification by the legislatures of the states. In either case, the three-fourths requirement applies.

Congress has only specified ratification by convention for the 21st amendment, which repealed the 18th Amendment (prohibition).

Why Might Calls for an Article V Convention Be a Good Thing?

One would think that the three-fourths requirement for ratification would quiet fears of a runaway convention, but many people still raise this as a major concern. It’s a concern that, admittedly, I share with many others.

But there might be some good to come out of the current interest in Article V conventions, even if they are ultimately unsuccessful –

It could generate genuine public and, perhaps, even congressional interest in the constitutional issues being discussed. Even a failed effort might motivate many Americans to think about the Constitution.

Plus, Article V simulations, like the one underway in Williamsburg, Va., this week, are an excellent opportunity to teach our nation’s citizens about the Constitution and constitutional change.

The Cure for a “Gravely Ill Constitution” is More Civics Education

Garrett Epps  wrote a piece in The Atlantic on Tuesday titled “Trumpism is the Symptom of a Gravely Ill Constitution.”

In this piece Epps argues that

Trumpism is the symptom, not the cause, of the malaise. I think we have for some time been living in the post-Constitution era. America’s fundamental law remains and will remain important as a source of litigation. But the nation seems to have turned away from a search of values in the Constitution, regarding it instead as a set of annoying rules.

He goes on to argue that Donald Trump and his supporters are “openly contemptuous of the nation’s founding document, of its Bill of Rights, and of the Fourteenth Amendment’s guarantees of due process and equal protection.”

Epps’ piece reminds of a warning issued by James Monroe, our nation’s fifth president, in his first Inaugural Address –

It is only when the people become ignorant and corrupt, when they degenerate into a populace, that they are incapable of exercising their sovereignty. Usurpation is then an easy attainment, and an usurper soon found. The people themselves become the willing instruments of their own debasement and ruin. Let us, then, look to the great cause, and endeavor to preserve it in full force. Let us by all wise and constitutional measures promote intelligence among the people as the best means of preserving our liberties.

A variety of surveys and studies in recent years confirm that Americans lack a basic understanding of the United States Constitution and system of government. The Annenberg Public Policy Center at the University of Pennsylvania found in their annual Constitution Day survey that only a quarter of Americans can name all three branches of government, the poorest showing on that question in a half-dozen years. They also found that nearly a third of Americans cannot name any of the three branches of government. Last year, the APPC survey found that about one in 10 Americans (12 percent) says the Bill of Rights includes the right to own a pet. (For the record – it does not!)

A study by the Center for Civic Education and Professor Diana Owen of Georgetown University found that 86% of respondents are aware that they are not well-informed regarding our nation’s foundational documents.

As Monroe said in his first inaugural address and many of our Founding Fathers confirmed in much of their writings, the cure for an “ill Constitution” is education!

In 1785, John Jay wrote,  “I consider knowledge to be the soul of a republic[.]” Years earlier, John Adams in his Dissertation on the Canon and Feudal Law remarked that “Liberty cannot be preserved without general knowledge among the people.” In his second annual message to Congress, then-President James Madison stated “It is universally admitted that a well-instructed people alone can be permanently a free people.”

In one of his most famous quotes, Thomas Jefferson stated: “I know no safe depository of the ultimate powers of the society but the people themselves: and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”

High quality life-long civics education is essential for the continued health of the American republic. It helps ensure that Americans of all ages, in the words of Noah Webster, value “the principles of virtue and liberty,” and that we “inspire them with just and liberal ideas of government and with an inviolable attachment to their own country.”

Regardless of whether you agree with Epps’ argument about Trumpism or instead believe that its Clintonism that represents the symptom of an ill Constitution, the stats and rhetoric in 2016 are clear, we need to reinvigorate our nation’s commitment to civics education. Education is and has always been the cure for what ails our Republic.

The 35th Anniversary of Sandra Day O’Connor’s U.S. Supreme Court Confirmation

On September 21, 1981, the Senate voted 99-0 to confirm Sandra Day O’Connor as the first woman on the United States Supreme Court. President Ronald Reagan nominated O’Connor in August 1981 as the fulfillment of his 1980 campaign promise to appoint the first woman to the nation’s highest court.

During her 25 years on the Court, she played a crucial role in decisions on abortion, affirmative action, the death penalty, among many others. O’Connor’s status as the first woman on the court, combined with “a gregarious public presence unusual for the government’s most monastic branch, made her unquestionably the best-known justice in modern times, greeted by strangers in airports and on the streets and always named on pollsters’ lists of America’s most powerful and most respected women.”

She also received a lot of attention as the Court’s “swing vote” (a place now occupied by Justice Anthony Kennedy).

“O’Connor arrived on an ideologically divided high court during a period of unprecedented challenge to established law on issues such as abortion, affirmative action, church-state relations and criminal justice.

She put her stamp on each of these fields, not by adopting an agenda, but by avoiding one. With colleagues often locked into predictable conservative or liberal position, this made her a consistent swing vote, a strategic role she deployed to moderate the extremes, in case after controversial case.”

When she submitted her resignation to President George W. Bush in 2005, the president spoke to O’Connor by telephone from the Oval Office in what was described as an “emotional call.” Bush reportedly told O’Connor “You are one of the great Americans. . . . I wish I was there to hug you.”

After retiring to take care of her now late husband, Justice O’Connor turned her time and attention to civics education. O’Connor is undoubtedly the nation’s highest profile champion of civics education. In 2009, Justice O’Connor founded iCivics in an effort to restore civic education in our nation’s schools. iCivics has gone on to become one of the leading organizations in the effort to educate young people about our nation’s system of government.

O’Connor famously said that: “It is imperative if we are going to survive as a nation that our schools teach civics. Knowledge and understanding about our system of government is not something that’s handed down in the gene pool. You have to learn it.”

On the 35th anniversary of Justice O’Connor’s confirmation as the first woman on the United States Supreme Court, I hope we will celebrate not only her contributions to the nation’s highest court, but also her continued contributions to civic knowledge and engagement. I hope that other justices on the Court follow in her footsteps – Justice Sotomayor already has by agreeing to serve on iCivics’ governing board.

 

2016 Presidential Debate Primer: The Candidates and the Constitution

Hillary Clinton and Donald Trump face off in their first presidential debate next Monday, September 26, 2016. I put together a useful primer in The Washington Times on what the candidates are saying about the Constitution this election cycle.

In my primer, I cover the candidates’ views on the United States Supreme Court, executive power, the Second Amendment, the press and religion clauses of the First Amendment, and the 14th Amendment.

Check it out here: http://www.washingtontimes.com/news/2016/sep/12/the-constitution-on-the-campaign-trail-in-2016/

A Brief History of Constitution Week: September 17 to September 23

Since 1956, we’ve celebrated the Constitution not only on September 17 (the date the document was signed by the Constitutional Convention delegates), but also for a full week thereafter.
Congress, by joint resolution of February 29, 1952 (36 U.S.C. 106), designated September 17 as “Constitution Day and Citizenship Day,” and by joint resolution of August 2, 1956 (36 U.S.C. 108), requested that the President proclaim the week beginning September 17 and ending September 23 of each year as “Constitution Week.”
upon all our citizens to renew and reaffirm on that day their faith in the principles and ideals embodied in the Constitution – the foundation of our strength and the symbol of freedom and justice for all.

On September 17, 1787, the delegates to the Federal Convention in Philadelphia met for the last time and approved these familiar words now enshrined not only in our Nation’s basic Instrument of Government but also in the hearts of our citizenry. Led by the President of the Convention, George Washington, the great majority of the delegates signed the newly drafted Constitution, and on the following day their Secretary set off for New York by stage coach to deliver the engrossed document to the United States in Congress there assembled. Within a week the proposed Constitution had been printed and circulated in both Pennsylvania and New York, and the great principles by which our country still is governed had been dispatched or carried home by delegates from other States as well. On September 28, 1787, the Congress resolved to transmit the draft text officially to the States of the Confederation for action.

It is fitting that we, whose entire lives have been protected by the fruits of the Convention’s deliberations, should pause in our several occupations to study the course of events by which our Constitution came into being, the great debate which ensued before our Federal Government became established, and the internal stresses and the assaults from without which we as a Nation have met successfully, with God’s help, within the framework established by our forbears one hundred and sixty-eight years ago.

“NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim September 17, 2016, as Constitution Day and Citizenship Day, and September 17 through September 23, 2016, as Constitution Week. I encourage Federal, State, and local officials, as well as leaders of civic, social, and educational organizations, to conduct ceremonies and programs that bring together community members to reflect on the importance of active citizenship, recognize the enduring strength of our Constitution, and reaffirm our commitment to the rights and obligations of citizenship in this great Nation.”
Congress, through a provision tucked into the Consolidated Appropriations Act of 2005, mandated that all schools receiving federal funding hold educational programs on the U.S. Constitution on September 17th of every year, unless the 17th falls on a Saturday, Sunday, or holiday, then Constitution Day will be held during the preceding or following week.

SEC. 111. (a) The head of each Federal agency or department shall-

(1) provide each new employee of the agency or department with educational and training materials concerning the United States Constitution as part of the orientation materials provided to the new employee; and

(2) provide educational and training materials concerning the United States Constitution to each employee of the agency or department on September 17 of each year.

(b) Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution.

Looking for great FREE Constitution Week resources? Check out the Civics Renewal Network’s list of Constitution Day resources. My non-profit, The Constitutional Sources Project (www.ConSource.org) is proud to be a partner in the Civics Renewal Network.

Constitution Day Surveys Confirm Decline in Civic Knowledge and Constitutional Literacy

Two surveys released in honor of Constitution Day 2016 – one from the Center for Civic Education and the other from the Annenberg Public Policy Center at the University of Pennsylvania – confirm that Americans lack a basic understanding of the United States Constitution and our system of government.

On September 14, 2016, the Center for Civic Education and Professor Diana Owen of Georgetown University released the result of their Constitution Day survey, which showed that while Americans do not know much about the United States Constitution, they do, at the very least, support its basic ideas.

The full survey results can be found here.

Some key findings from the survey include –

  1. Only 14% of Americans think they know a lot about the Declaration of Independence and Constitution. 86% of respondents are aware that they are not well-informed regarding our nation’s foundational documents.
  2. The survey revealed that the greater the knowledge of the Constitution, the greater the acceptance of its basic ideas. For example, 84% of those who know a lot about the Constitution think that all citizens should have equal political rights compared to 67% of those with little knowledge.
  3. A large majority of Americans (80% +) support elements of the Constitution and its amendments that protect the rights to freedom of belief and expression; the protections of due process of law for the rights to life, liberty, and property; the equality protection of the law; and political equality.

The Annenberg Public Policy Center at the University of Pennsylvania found in their annual Constitution Day survey that only a quarter of Americans can name all three branches of government, the poorest showing on that question in a half-dozen years. They also found that nearly a third of Americans cannot name any of the three branches of government. Last year, the APPC survey found that about one in 10 Americans (12 percent) says the Bill of Rights includes the right to own a pet. (For the record – it does not!)

Other key findings include –

Of war, taxes and religion

In a series of multiple-choice questions, Americans were divided over what the U.S. Constitution says about which branch of government has the power to declare war, but clearer on what it says about taxes and religion:

  • Nearly 4 in 10 (39 percent) incorrectly said that the Constitution gives the president the power to declare war. Over half (54 percent) knew that the Constitution gives Congress the power to declare war.
  • A vast majority (83 percent) correctly said that the Constitution gives Congress the power to raise taxes.
  • A majority (77 percent) know that the Constitution says that Congress cannot establish an official religion – though almost 1 in 10 agreed with the statement that the Constitution says, “Congress can outlaw atheism because the United States is one country under God.”

The Supreme Court and a free press 

Americans were divided about what happens if the Supreme Court ties 4-4 on a case, which is more likely to happen under the current eight-member court with one seat unfilled. A third of people (33 percent) correctly said the decision of the lower court stands, a third (32 percent) said the case is sent to the “Federal Court of Appeals” for resolution, and 21 percent said the justices must vote until the tie is broken.

The First Amendment prohibits the making of any law “infringing on the freedom of the press.” But 40 percent of those questioned favored the idea that Congress could forbid the news media from “reporting on any issue of national security without first getting government approval.” More than half (55 percent) opposed such restraints.

If you’re disturbed by these statistics, I encourage you to join the organizations working every day to address the troubling decline in civic knowledge and constitutional literacy.

Civic Education & James Monroe’s Warning to the Nation: What ConSource is Doing to Address the Decline in Civic Knowledge

In his first inaugural address, James Monroe offered a dire warning should the nation not invest in the education of its citizens.

He said: “It is only when the people become ignorant and corrupt, when they degenerate into a populace, that they are incapable of exercising their sovereignty. Usurpation is then an easy attainment, and an usurper soon found. The people themselves become the willing instruments of their own debasement and ruin. Let us, then, look to the great cause, and endeavor to preserve it in full force. Let us by all wise and constitutional measures promote intelligence among the people as the best means of preserving our liberties.”

This is why I’m proud to lead The Constitutional Sources Project (www.ConSource.org), a non-profit devoted to connecting tens of thousands of American citizens annually to our nation’s constitutional history.

ConSource does this in a number of important ways.

First and foremost, we have created an easily searchable, fully-indexed, and freely accessible digital library of historical documents related to the creation, ratification, and amendment of the United States Constitution. ConSource is the only freely accessible historical database that offers full access to anyone, worldwide, to a wide array of sources pertaining to American constitutional development from the colonial era through the establishment of the U.S. Constitution and its constitutional system of government. We present the best possible versions of primary source documents, coupling, whenever possible, scans of original documents with careful and accurate transcriptions.

Two new collections of particular note are our Colonial Charter and Early State Constitution collection, which is overseen by myself and Richard Bernstein, an acclaimed constitutional historian. This groundbreaking digital collection will trace the creation and drafting of colonial charters and early state constitutions in Massachusetts, New York, Virginia, Pennsylvania, South Carolina, Connecticut, Delaware, Georgia, Maryland, New Hampshire, New Jersey, North Carolina, Rhode Island, Vermont, Kentucky, Tennessee, and Maine. There is currently no comprehensive collection of materials related to the development of colonial charters and early state constitutions in print or digital form, making this collection especially unique and highly valuable to those who wish to understand and explore America’s rich constitutional tradition.

Another collection in progress is our Women and the Constitution Collection, which will bring to the fore the work of our nation’s Founding Mothers and their intellectual progeny, tracing the myriad ways women have shaped American political thought and government from the first rumblings of revolution to the modern era.

But we know it is not merely enough to provide free and easy access to these materials. We have to make the materials easily searchable and usable in various forms. This is why all of the materials in our database are connected through our search tool called The Constitutional Index, which connects historical documents to relevant clauses in the United States Constitution. Our Constitutional Index is a popular tool amongst not only educators and students but also lawyers and scholars. We know that our database is often used by lawyers who seek to use constitutional history in arguing their case. In 2014, for example, the National Law Journal discussed how our digital library made “life easier for lawyers” in the landmark case of NLRB v. Noel Canning. Some of our documents were cited in the briefs for that case. Jones Day Partner Noel Francisco was interviewed for the National Law Journal piece and said, “Particularly for cases like this one, where founding-era history is important, online resources are of enormous value to lawyers and judges alike.” The ConSource database was also used in a brief filed by the Constitutional Accountability Center on behalf of Harvard Law School professor Lawrence Lessig in the case McCutcheon v. Federal Election Commission. Using ConSource’s digital library, Lessig’s researchers searched for every use of the word “corruption” to show that the founders viewed corruption of government institutions as a major concern.

Online resources like ours are also, perhaps, of the most value to young citizens, which is why we devote a large share of our time to creating free educational resources and hosting educational and public programs.

Some of our key educational programs include

  • Our Virtual Supreme Court Competition – hosted partnership with The Harlan Institute. The competition offers teams of high school students the opportunity to research contemporary constitutional law issues, use primary source documents in constructing a legal argument, write persuasive appellate briefs, argue against other students through Google Video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year the competition focused on Fisher v. University of Texas at Austin (II).
  • We also host a Constitution Crash Course – a half or full day crash course exploring the text, structure and history of the U.S. Constitution.
  • And develop free curricular resources – like our popular U.S. Constitution for Kids – that we distribute through various channels to teachers all over the country.
  • We are working to complete over the next 6 months our Choosing to Make a Nation Curriculum on the Revolution, Constitution, and Bill of Rights. This project is a resource-rich, student-centered curriculum for teaching early American history from the Revolutionary period to the first Congresses under the federal constitution of 1787. Each lesson begins with a central historical question and features sets of digitized primary source documents from the ConSource digital library designed to place students in the shoes of historical actors. The curriculum not only teaches students essential critical thinking skills, but also develops important reading strategies, such as sourcing, contextualizing, corroborating, and close reading. The goal of the project is to move students away from rote memorization of historical facts and toward analyzing and questioning the nature of complex historical issues. The Choosing to Make a Nation curriculum encourages students to become active learners, who, through a range of activities built into each lesson plan, will learn how to make informed and reasoned decisions. In short, the curriculum promotes not only civic knowledge, but also civic competence – preparing students to be informed and active participants in public life as members of local, national, and global communities.

As part of our effort to promote constitutional literacy across the learning spectrum, we also host public programs on a range of constitutional topics.

ConSource is not alone in the work that we do. And, thank goodness for that, because it is a tall order to address the decline in civic knowledge and in optimism about the future. For this reason, we are a member of a number of educational coalitions, including the Civics Renewal Network and the National Constitutional Literacy Campaign. The Civics Renewal Network is a coalition of 26 non-profit and governmental organizations, including ConSource, iCivics, the National Constitution Center, the National Archives, the Library of Congress, and many others, which is seeking to raise the visibility of K-12 civics education. We are also the lead organization behind the National Constitutional Literacy Campaign. The Mission of the National Constitutional Literacy Campaign is to increase visibility and financial support for the constellation of organizations educating citizens along the learning spectrum – from kindergarten to adulthood—about the American Constitution and our nation’s history. Each year the National Constitutional Literacy Campaign publishes a Constitution Day special section in The Washington Times. This year’s special section focuses on the President and the Constitution, and includes articles from Senator Patrick Leahy and Senator Mike Lee, among others.

High quality life-long civics education is essential for the continued health of the American republic. It helps ensure that Americans of all ages, in the words of Noah Webster, value “the principles of virtue and liberty,” and that we “inspire them with just and liberal ideas of government and with an inviolable attachment to their own country.”

I hope you will join me and ConSource as we seek to stem the tide and reverse the troubling declines in civic knowledge and civil discourse!