Constitution Corner

Article V and Saving Our Democracy, No. 1
Thursday, April 28, 2022
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This is his monthly editorial on a proposed “Convention of the States,” authorized by Article V (5) of the U.S. Constitution.  Walter Clapp  hopes to foster quality debate across the widening political divide in our country, starting here, in Carbon County. A series of in person debates will begin September 2022, hosted by Honor Coin Law, PLLC. Dates and locations will be posted when confirmed. Please send your thoughts to Walter via robyn@honorcoinlaw.com.

 

To the People of the State of Montana,

 

This year marks the 50th anniversary of Montana’s Constitutional Convention, where our guiding document was rewritten. It is a time to celebrate and contemplate amending our other, Federal, Constitution. 

 

 

If you agree our democracy may need amending, you are in luck! Article V (5) of our U.S. Constitution provides more than one way to amend itself. The first way is Congress proposes amendments. America has never tried the other – a so called “Convention of the States.” 

 

I propose we try the Convention, because Congress is broken. Is there risk involved? Of course. But this is the United States of America - a nation of explorers, pioneers and entrepreneurs. Bold moves are once again needed in 2022. 

 

To get the conversation started, I pose this question: what should we amend? The answer, to begin, is easy.

 

The first proposed Article V Amendment should mirror the first ever proposed Amendment in what became the Bill of Rights. Today, it remains unratified in the ether. 

 

You heard that right. There were actually 12 proposed amendments in the Bill of Rights. You have probably only heard of the 10 that passed in 1791. The 11th actually sat around in the ether from 1789 until it was finally ratified in 1992 as our 27th Amendment. The 27th Amendment guarantees that a current Congress may only give pay raises to a future Congress. Not a bad idea, I think.

 

The amendment omitted from the Bill of Rights deals with Representation and Proportionality. Basically, using math to fix the number of constituents per representative as the population changes.

 

Because the Amendment was not ratified, the number of members of the House of Representative was artificially fixed at 435. By a simple bill in 1929. Today we have over ~700,000 constituents per representative. That is worse representation than UK citizens have in their lower house of commons! By a factor of 7! The Founders envisioned our House of Representatives growing with the size of the country. But today we are stuck with the same 435 overworked puppets of special interests. What about that Boston Tea Party cheer - “no taxation without representation!”? We had an entire Revolution to get better representation! With population growth, our representation has been declining unchecked since 1929

 

During our founding, no debate was more heated than that of representation and proportionality. It was one of the only debate topics George Washington spoke on during the Constitutional Convention. 

 

But if George cared so much about representation, why didn’t the Amendment pass? Because of an algorithmic failure - a bug in the Amendment’s code.

 

What bug? A hasty joint Senate/House committee markup of the House version was adopted with the change of a single word. The result was a logical impossibility later discovered once the amendment was sent to the states for ratification. 

 

In particular, when the US Population numbered between 8,000,001 and 9,999,999, the final clause of the amendment proposed would be violated. The 200 Representative minimum is above the maximum when there is between 8,000,001 and 9,999,999 constituents. For example, 8,000,001/50,000=160. 

 

So, the Amendment did not pass. But now something similar must. This was the first proposed amendment in our Bill of Rights. If we do not insist upon quality representation, our government fails without us noticing.  

 

So let’s talk about it.

 

Sincerely,

 

Walter D. Clapp, Attorney at Law

Walter is a philosopher and attorney residing in Red Lodge. He clerked for the Senate Judiciary Committee in Washington D.C., where he researched the issues presented.

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