Article V Lobbyist Kenn Quinn Refuted by Shawn Meehan

New Hampshire legislators recently received an email from Kenn Quinn of TermLimits.org. Mr. Quinn appears to be cherry picking references, distorting them as if to practice law without a license. He projects certainty of how a convention might take place, which is dangerous and unfair to legislators that deserve facts, not marketing propaganda, so they may wisely choose their votes. His use of all block letters and the label “FACT” is demonstrative of hubris.

Numbers in brackets correspond to Endnotes that more fully provide original references supporting the statements made throughout this memo.

Term limits sound really great, but….
In these times of the uninformed emotional fervor, angst of We The People is being directed against the wrong problems. Term limits wrongly seems to be an easy solution to a problem caused by a society that has become shallow and uninterested except in times of crises.

Essentially, our problems are the results of We The People failing to be engaged, rather seeking quick emotional faux solutions to problems created because we’ve been thinking short term, only responding to emergencies, we have caused by previously only seeking emotional, short term solutions.

Term limits wrongly allows We The People to deny the problem is our fault
This is not true of course. We can go back to voting for whomever wears the badge of their party or buys the most TV commercials. To found America and keep her free, nearly 1.4 million Americans have given the ultimate sacrifice. They are dead. They died for us.

Without question we have a duty to slow down and get this right. Their sacrifices demand we have facts and integrity when we approach our Constitution.

We have a duty to meet candidates in our communities, coffee shops and churches. We have a duty to read their financial disclosures, shake their hands and look in their eyes. We have to duty to make every best attempt to elect honorable representatives, and, when the scallywags slip past our newly-affirmed efforts at Due Diligence, we must turn them out of office. We must do that, not rely on parchment barriers to do it.

The Articles of Confederation and Perpetual Union had term limits.
Why did the Founders not include them in the new Constitution? The framers of the Constitution knew term limits did more harm than good.

It is true that there are currently no rules controlling an Article V except in Article V.
To challenge this. Kenn falsely claims the 2017 Arizona Balanced Budget Amendment Planning Convention created rules for any Article V convention that is called. The American Legislative Exchange Council page describing the meeting clearly states they are draft rules and not binding. [1] “Delegates” attending from some states were not officially selected by legislatures, but hand picked, several state’s representatives, sent without formal legislative procedures. In no way was this meeting comparable to an Article V convention.

Kenn makes several broad statements absent any sourced references, claiming that numerous conventions have occurred and all followed rules. Convention promoters falsely say they have never violated rules or exceeded their authority. The following four Endnotes disprove this. [2] [3] [4] [5]

Kenn also does not seem to understand that federal laws are superior to state laws, as clearly codified in the Supremacy Clause of the US Constitution. Congress has asserted themselves at least 41 times stating that they will call any Article V convention (just like the plain text of Article V [7] empowers them to) and that incidental to calling such, Congress will define the rules. [8] [9]

The Federal Convention Act of 1973 [10] was passed unanimously by the US Senate but never became law as the urgency to pass such bills fell away after states began to wisely rescind their Article V applications. This 1973 Act and other bill drafts are a fair indicator of Congress’ intent to define a convention. Such would exempt all delegates from any punishment for any speech, which would include votes and other actions.

This clearly means that any attempts to limit delegates or punish them, passed by their states, would be unenforceable, and therefore, a fraud to the People of such state as a marketing deception that any convention is safe and controlled by states. When US Term Limits filed suit in 1995 (U.S. Term Limits, Inc. v. Thornton (93-1456), 514 U.S. 779 (1995)), the Supreme Court issued a clear rebuke of attempts by states to interfere in processes that were exclusively federally-defined as not existing prior to ratification of the Constitution. They were new powers states dd not have, and so could not delegate. The opinion’s excerpts are clear. [11]

Kenn claims “Chiafalo v Washington further proves the fact that state legislatures have full control over their appointed delegates and electors.” This is absurd as we have shown above that states may not add rules to the process. Further, “Chiafalo” deals with Article II, Section I, as amended by the Twelfth Amendment, specifically, presidential electors. The Constitution clearly grants state legislatures plenipotentiary authority to select how electors are selected. No such authority or specific guidance is offered to states via Article V, a completely different, unrelated process. Chiafalo is wholly unrelated and a sophomoric attempt to mislead.

Kenn continues, “Hamilton in Federalist 85 makes this crystal clear ; “ The words of this article are peremptory. The Congress “shall call a convention.” Nothing in this particular is left to the discretion of that body.” He actually thinks that means Congress has no input. What it actually means is that Congress must call the convention upon 2/3 of the states applying. They have no discretion and must call it.

Kenn also writes, “Any powers not expressly given to Congress under Article V falls to the States under the 10th Amendment.”

Well, except federal functions created in the Constitution. [8] [9] [11] He also claims these powers “falls to the states” under the Tenth Amendment. This shows a fundamental lack of understanding of the origin of the Constitution, specifically the Tenth Amendment. All powers pre-Constitution, belonged to the states. Those not given up, remained with the states. They didn’t fall, nor were they given to the states by anyone. They belonged to the states from the start. I’ve clearly shown that in powers created by the Constitution (not existing before it), the states have no power or authority beyond that which may be strictly pointed out.

A convention cannot be topic-limited
Kenn opposed the statement,”A convention cannot be limited to a single issue or topic,” by writing, “ FALSE, then FACT: …Alexander Hamilton in Federalist 85 specifically stated that the convention is limited to a particular amendment!” Kenn needs to stop making bold marketing statements with cherry picked references that are not true.

There are many robust references showing that an Article V convention may not be limited. [12] Further, there is an effort afoot by groups to consolidate any and all Article V applications without regard to subject. ALEC attorney Biddulph testified to this point in 2021 in South Carolina [13]

Under the Political Question Doctrine, Federal courts should refuse to hear a case if they find it presents a political question. If in fact courts do not intervene [10], just who will have control? An Article V convention is a recipe for constitutional chaos. There are numerous states that would litigate to protect their rights in what would become an international embarrassment, further diminishing our Constitution’s illuminating light of Liberty. An Article V convention cannot be topic limited. [15]

Career politicians have, and can again, be defeated | Term limits not needed
Jun 10, 2014, in one of the most stunning primary election upsets in congressional history, the House majority leader, Eric Cantor, was soundly defeated by a Tea Party-backed economics professor David Brat, who had hammered him for being insufficiently conservative.

Wyoming Rep. Liz Cheney was soundly beaten in her primary by Harriet Hageman after being censured by the Republican National Committee at its meeting in Salt Lake City on February 4, 2022.

Lauren Boebert defeated five-term incumbent Scott Tipton in the Republican primary in Colorado in 2019.

In 2018, Alexandria Ocasio-Cortez was the first person since 2004 to challenge Joe Crowley, the Democratic Caucus Chair, in the primary. Ocasio-Cortez’s campaign undertook grassroots mobilization and did not take donations from corporations.

Ocasio-Cortez received 57.13% of the vote (15,897) to Crowley’s 42.5% (11,761), defeating the 10-term incumbent by almost 15 percentage points on June 26, 2018.

Representative Bogert, please vote NO on the Term limits bill, delegate limitation bill, or any article V convention bill.

Respectfully,

<<Signed>>
Shawn Meehan, MSgt, USAF, Retired
Founder, Guard The Constitution

https://www.guardtheconstitution.com/category/article-v
shawn@guardtheconstitution.com
Postal: P.O. Box 34, Minden, NV 89423
Office (Voice/Text): 202-930-1750
Twitter: https://twitter.com/GuardTheConst
Facebook: facebook.com/GuardTheConstitution
LinkedIn: linkedin.com/in/shawnmeehan/

Endnotes:

[1]. “The rules prepared at the Arizona BBA Planning Convention are not binding upon a BBA amendment convention, as any convention can only recommend an action and every convention can adopt its own rules.”
The Arizona Balanced Budget Amendment Planning Convention, William H. Fruth, Balanced Budget Amendment Task Force, August 15, 2017
[https://alec.org/article/the-arizona-balanced-budget-amendment-planning-convention-one-of-the-most-important-assemblages-in-our-nations-history/]

[2]. Pennsylvania convention of 1873
“When the Pennsylvania convention of 1873 proposed a new constitution, along with changes in the bill of rights that went beyond what was sanctioned in the enabling act, suit was filed to prevent submission of the constitution for popular ratification . The Pennsylvania supreme court admitted that the convention had acted ultra vires, but before the case was decided the constitution had been submitted to the voters and approved by a large majority. Said the court: “The change made by the people in their political institutions, by the adoption of the proposed Constitution … forbids an inquiry into the merits of this case. The question is no longer judicial.”
— Constitutional Brinkmanship, Amending the Constitution by National Convention, By Russell L. Caplan, Oxford University Press, 1988, Page 155

[3]. New York Convention of 1821
“In any event the idea that because a convention is in some sense “sovereign” it may override its commission flourished in the state conventions of the nineteenth century. After adoption of the federal Constitution, the states, both original and newly admitted, held conventions to draft and revise their constitutions. At the 1821 New York convention, delegate Peter R. Livingston denied all limitations in an effort to show that the convention had the authority to disenfranchise blacks (a ploy to dilute their voting strength in New York City): the people are here themselves. They are present in their delegates. No restriction limits our proceedings….”

[4]. Illinois convention of 1847
“At the Illinois convention of 1847, Onslow Peters…We are here the sovereignty of the state. We are what the people of the state would be if they were congregated here in one mass meeting. We are what Louis XIV said he was- “We are the state.” We can trample the constitution under our feet as waste paper, and no one can call us to an account save the people.”
— Constitutional Brinkmanship, Amending the Constitution by National Convention, By Russell L. Caplan, Oxford University Press, 1988, Preface xii.

[5]. Illinois convention of 1862
“The Illinois convention of 1862 was pivotal for convention scholarship. That body had been called to propose a new state constitution, but in addition to submitting a charter for ratification-which was rejected-the assembly engaged in numerous unauthorized acts that were highly publicized and profoundly alienating to its constituents. Among other measures, the convention ratified a proposed amendment to the federal Constitution that Congress had stipulated was to be approved by the state legislatures, reapportioned the state’s congressional districts, approved a bond issue to aid wounded Illinois soldiers in the Union army, and began investigating the conduct of the state governor’s office.

…select committee of the convention was assigned to determine whether the assembly was bound by the limitations of its enabling act. The committee, influenced by the proceedings of the 1847 convention, announced in its report (adopted by the full membership) that a convention represents “a peaceable revolution of the state government . . . a virtual assemblage of the people of the state, sovereign within its own boundaries.” Accordingly, “after due organization of the Convention, the law calling it is no longer binding” and “the Convention has supreme power in regard to all matters incident to the alteration and amendment of the constitution.”
— Constitutional Brinkmanship, Amending the Constitution by National Convention, By Russell L. Caplan, Oxford University Press, 1988

[6]. “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
— Article VI, Clause 2, “Supremacy Clause” US Constitution [https://www.law.cornell.edu/constitution/articlevi]

[7]. “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, which, 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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
— Article V, US Constitution [https://www.archives.gov/federal-register/constitution/article-v.html]

[8] “And the few cases that have been asked to deal with issues comparable to the one now tendered to this Court have uniformly held questions as to compliance with Article V’s requirements are within the sole province of Congress and not the courts — in the language that has come to characterize such issues, they are political” (that is, nonjusticiable) questions.”
— United States of America, Plaintiff, v. Wayne Wojtas, Defendant, No. 85 CR 48, United States District Court for the Northern District of Illinois, Eastern Division, 611 F. Supp. 118; 1985 U.S. District. Lexis 19914, May 10, 1985

[9]. “As a rule, the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require, and Article V is no exception to the rule.”
— Dillon v. Gloss 256 U.S. 368 (1921)

[10]. The U.S. Senate passed Federal Convention Act of 1973 on July 9, 1973. Two key sections from that act are:

“SEC. 7. (a) A convention called under this Act shall be composed of as many delegates from each State as it is entitled to Senators and Representatives in Congress.”

“SEC. 7. (c) Delegates shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at a session of the convention, and in going to and returning from the same and for any speech or debate in the convention they shall not be questioned in any other place.”

When the Act was originally drafted and referred to the Judicial Committee, 7(a) called for one state, one vote, but was changed to this Electoral College model. As passed, it would handicap states.

7(c) makes it pretty clear that Congress intends to exempt all delegates from any potential prosecution upon their return to their state. Legislators also must consider that most parliamentary rules provide for “executive session” as was used for the entire 1787 Constitutional Convention. Delegates might not be able to be communicated with, controlled, or recalled. In executive session, the events within the convention would not be known so the states would have no knowledge of delegate performance and if a recall of delegates was necessary.

[11]. As Justice  Story recognized, “the states can exercise no powers whatsoever, which  exclusively spring out of the existence of the national government, which  the constitution does not delegate to them. . . . No state can say, that  it has reserved, what it never possessed.” 1 Story §627.

As Chief Justice Marshall pointed out, an “original right to tax” such federal entities “never existed, and the question whether it has been surrendered, cannot arise.” id., at 430. See also Crandall v. Nevada, 6 Wall. 35, 46 (1868). In language that presaged Justice Story’s argument, Chief Justice Marshall concluded: “This opinion does not deprive the States of any resources which they originally possessed.” 4 Wheat., at 436. [n.15]

After the Constitutional Convention convened, the Framers were presented with, and eventually adopted a variation of, “a plan not merely to amend the Articles of Confederation but to create an entirely new National Government with a National Executive, National Judiciary, and a National Legislature.” Id., at 10. In adopting that plan, the Framers envisioned a uniform national system, rejecting the notion that the Nation was a collection of States, and instead creating a direct link between the National Government and the people of the United States.

As Justice Story observed, each Member of Congress is “an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states. . . . Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people.” 1 Story §627.

U.S. Term Limits, Inc. v. Thornton (93-1456), 514 U.S. 779 (1995).

[12]. Perhaps the most assertive expression of the open or general convention argument centers on the doctrine of “conventional sovereignty:” According to this theory, a convention is, in effect, a premier assembly of the people, a representative body charged by the people with the duty of framing the basic law of the land, for which purpose there devolves upon it all the power which the people themselves possess.
In short, that for the particular business of amending and revising our Constitution, the convention is possessed of sovereign powers and therefore is supreme to all other Government branches or agencies.”
— Brickfield, Problems Relating to a Federal Constitutional Convention, p. 16.

“In any event, even if Congress could specify that a convention was called to a single issue, that limitation would be unenforceable. I doubt that the Supreme Court would declare a ratified amendment void on the ground that the convention had gone beyond Congress’ instructions. The original Philadelphia convention went well beyond the purposes for which it was called and no one has suggested that the Constitution is a nullity for that reason.
Accordingly, I do not see how a convention can be limited to one topic once it has been called.”
— Robert Bork, a letter to Representative Reese Hunter, January 16, 1990

“Because no amending convention has ever occurred, an important question is whether a convention can be limited in scope, either to a particular proposal or within a particular subject. While most calls for amending conventions in the nineteenth century were general, the modern trend is to call for limited conventions. Some scholars maintain that such attempts violate Article V and are therefore void.”
— Spalding, Matthew; Edwin Meese; David F. Forte (2005-11-07). The Heritage Guide to the Constitution (p. 266). Regnery Publishing, Inc.

“Writing at the height of debate over the 1980s campaign for an Article V Convention to consider a balanced budget amendment, former Solicitor General Walter Dellinger asserted that the Framers deliberately sought to provide a means of amending the Constitution that is insulated from excessive influence by either the state legislatures, or by Congress.”

His view of the convention’s authority is among the most expansive advanced by commentators on the Article V Convention: …any new constitutional convention must have the authority to study, debate, and submit to the states for ratification whatever amendments it considers appropriate (emphasis added). According to his judgment, an Article V Convention must be free to pursue any issue it pleases, notwithstanding the limitations included in either state applications or the congressional summons by which it was called:

If the legislatures of thirty-four states request Congress to call a general constitutional convention, Congress has a constitutional duty to summon such a convention. If those thirty-four states recommend in their applications that the convention consider only a particular subject, Congress still must call a convention and leave to the convention the ultimate determination of the agenda and the nature of the amendments it may choose to propose.”
— Walter E. Dellinger, “The Recurring Question of the ‘Limited’ Constitutional Convention,” Yale Law Journal, volume 88, issue 8, July 1979, p. 1624.

More recently, Michael Stokes Paulsen invoked original intent and the founders’ understanding of such a gathering. Asserting that they would have considered a “convention” to be a body that enjoyed broad powers, similar to the Constitutional Convention itself, he suggests: “Convention” had a familiar … public meaning in 1787. It referred to a deliberative political body representing the people, as it were, “out of doors.” Representatives or delegates to such a convention might well operate to some extent pursuant to “instructions” of the people thus represented, but a convention was not a pass-through or a cipher, but rather an agency ―  a deliberative political body.”
— Michael Stokes Paulsen, “How to Count to Thirty-Four: The Constitutional Case for a Constitutional Convention, ”Harvard Journal of Law and Public Policy, volume 34, issue 3, 2011, p. 842.

[13]. 14 April 2021, ALEC Attorney David Biddulph, South Carolina Judiciary Hearing

Wednesday, April 14, 2021, in the 2:30 pm Senate Judiciary Subcommittee meeting on several directly related Article V bills, some significant non-factual testimony was offered. Hearing at: [https://www.scstatehouse.gov/video/archives.php], scroll to link titled, “Wednesday, April 14, 2021  2:30 pm Senate Judiciary Committee — Senate Judiciary Subcommittee”

At Timestamp 1:28:00, Attorney David Biddulph, representing American Legislative Exchange Council, clearly and openly spoke about the planned aggregation of open Article V petitions by lawsuits from state attorneys general against Congress, to force them to call an Article V convention. This is essential to note as advocates promise states will control a convention, but they actually will not when the limited topics they approve are hijacked by this aggregation method, regardless of specific language specified by specific states. Congress will define the convention [1] and they have asserted such as reflected in the “Federal Convention Act of 1973” [2] which only the Senate passed, but it very clearly instructive that Congress will assert themselves as they have stated 41 prior times.[3]

Further, Mr. Biddulph shows how he is uninformed on the issue or dishonest when he claims Congress is not tracking Article V petitions. Congress currently does post and update valid Article V petitions from states under House of Representatives Rules, clause 3 of Rule XII here: [https://clerk.house.gov/SelectedMemorial]

“A New Strategy for the Article V Convention of States Movement // Recommendations.  1) The leaders of the different AV COS groups need to begin serious, realistic discussions concerning the future of the COS movement overall including the significance of the two aggregation studies described herein; the leaders need to begin cooperating and developing a unified approach toward convening a [GENERAL] COS by end of year 2022”
Principal author is Mr. Paul S Gardiner who served as Georgia Coalitions Director and National Veterans Coalitions Director for [COS PROJECT]. Source: https://huntforliberty.com/a-convention-strategy/

Term Limits call could trigger an open Article V convention, according to the American Legislative Exchange Council (ALEC) attorney that testified in 2021 in the South Carolina Judiciary Committee. They announced their plan to file a lawsuit to mandate Congress call a convention without regard to subject limitations. Term Limits resolutions gives them what they claim they need. See the proof: [https://huntforliberty.com/a-convention-strategy/]

[14]. An Article V convention has no “one state one vote” restriction and even Prof. Natelson admits such only when pressed: “Interstate conventions traditionally have determined issues according to a “one state/one vote,” although a convention is free to change the rule of suffrage.”
— Dr. Natelson writing in the ALEC Handbook, “Proposing Constitutional Amendments by a Convention of the States,” a Handbook for State Lawmakers, 2013 version, Section E, page 15.
[https://planetscape.github.io/noconcon/2013-article-five-handbook-1.pdf]

 

Shawn M. Meehan
2975 Santa Maria Street
Minden, NV 89423-7506
Direct Phone: 775-309-1050
Fax: 866-429-3403
Twitter: shawnmeehan