Download Osteen, James - Texas Legislature Online

April 13, 2017
SELECT HOUSE COMMITTEE ON STATE & FEDERAL POWER & RESPONSIBILITY
TESTIMONY
Re: HJR 39, Applying to the Congress of the United States to call a convention under
Article V of the United States Constitution for the limited purpose of proposing one or
more amendments to the constitution to impose fiscal restraints on the federal
government, to limit the power and jurisdiction of the federal government, and to limit
the terms of office of federal officials and members of Congress.
James Osteen, Tomball, Montgomery County -- Volunteer, Convention of States Project
Chairman Darby, Vice Chairman Murr, and other distinguished committee members, I
want to thank you for this opportunity to address HJR 39.
I want to dispel the myth that the 1787 Constitutional Convention was a “runaway”
convention, and address the fear that an Article V Convention might, also, be a
runaway. The two main accusations against the Constitutional Convention are that it
was charged by the Confederation Congress solely with amending the Articles of
Confederation but exceeded its authority 1) by drafting a new constitution and, 2) by
proposing a new ratification method. Neither accusation is true.
The Confederation Congress did not call the Constitutional Convention. It had no
authority under the Articles of Confederation to call a convention of the states, and thus
no authority to govern it. The State of Virginia called the Convention, pursuant to the
Annapolis Convention. The States participated under their independent authority as
sovereign political entities, which they were under the Articles. The delegates’
instructions came directly from their respective States. The scope of the convention was
defined by the participating States’ individual instructions to their delegates. All the
States gave instructions for the delegates to recommend “such alterations, and further
provisions, as may be necessary to render the federal constitution adequate for the
exigencies of the union.” Note that “constitution”, here with lower case “C”, means the
“composition” or “construction” of a thing, not the Articles of Confederation, per se. Two
States did give instructions to amend the Articles but the others did not mention the
Articles at all, at least two of them because they anticipated the need for a new form of
government.
Just as it was not restricted from proposing a new constitution, the Convention was not
restricted from proposing new ratification methods. To the point, the requirement for
unanimous ratification of amendments had proven impractical. New ratification methods
was an expected topic. Quite contrary to the charge of illegitimate actions, the
Convention scrupulously obeyed the existing ratification requirements under the Articles
of Confederation. To ensure the legitimacy of the new method, it was presented to the
States in the Ratification and Transition Resolution, as a separate Act from the
proposed Constitution. That Resolution was debated and ratified under the existing
method before the new method could be used to ratify the new Constitution.
But the most conclusive refutation of the charge that the Constitutional Convention was
a “runaway” and exceeded its authority is that neither the Confederation Congress nor
the State Legislatures sustained such a charge and rejected the proposed Resolution
and the new Constitution on that basis. Instead, the Confederation Congress gave them
its approbation, and the State Legislatures ratified them.
It is clear, then, that no specter of a runaway Constitutional Convention can be raised to
elicit fear of a runaway Article V Convention. To the contrary, comparing the
circumstances of the two Conventions shows that an Article V Convention is well
protected from any such outcome. Whereas the Constitutional Convention was called
under the authority of the States, and subject to their individual scope definitions, the
scope of an Article V Convention is specifically limited by the applications made to the
US Congress. All the applications must specify the same scope. There can be no
question as to the scope and authority of an Article V Convention. Any attempted
deviation from that scope or authority can be challenged by any delegate as out of
order.
Just as with the Constitutional Convention, the delegates to an Article V Convention
receive specific instructions regarding their authority and conduct from their respective
States. Those instructions provide another level of protection beyond the Convention’s
scope statement. They can further limit a delegate’s authority and actions but they
cannot expand either. With specific instructions in place:
 The State can discourage unauthorized conduct by imposing severe penalties for
wrongful actions. Take as an example Texas’ own Faithful Delegate Resolution.
 The State can recall a rogue delegate, or the entire delegation.
 Any action exceeding or contradicting the State’s instructions to the delegation
would be illicit and void, prima facia.
The rules of the Convention, itself, provide an even stronger level of protection against
runaway behavior. Even if an illicit amendment somehow came to a vote without being
challenged, it could not pass except by an equally illicit conspiracy among a majority of
the State Delegations to support it. And even then it would only be a proposed
amendment, and would have no legal force.
The amendment ratification process provides a last and realistically insurmountable
obstacle to an illicit amendment. Even if the Congress agreed to send such an
amendment to the States, it is beyond incredible to think that 38 States would ratify it.
Ratification can be blocked by as few as 13 of the 99 State Legislatures in the US.
The Constitutional Convention operated completely within its legal scope of authority to
produce the US Constitution – the most original, profound, consequential, and treasured
political document in all of history. The Convention was, itself, a convention of sovereign
states, constituted and executed by citizens who saw an urgent need to render changes
to their government outside the workings of the Congress that was empowered at the
time. They consecrated that right and they intentionally perpetuated that ability by
writing Article V. Clearly, they believed in its necessity, it efficacy, and its inherent ability
to be used safely. I agree with them, and I humbly but strongly urge this Committee to
pass HJR 39 to the full House for a floor vote.