Liberty cannot be preserved without a general knowledge among the people, who have a right, from the frame of their nature, to knowledge, as their great Creator, who does nothing in vain, has given them understandings, and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge; I mean, of the characters and conduct of their rulers. — John Adams, Dissertation on Canon and Feudal Law 1765

Constitutional Convention Bills Pass South Dakota Committee

February 9, 2014   ·   By   ·   1 Comments

The Constitutional Convention of 1787

The Constitutional Convention of 1787

Two of three bills scheduled to be heard in committee Friday dealing with an Article V Constitutional Convention were passed by the South Dakota House State Affairs committee.

HB 1136 to “limit the authority of delegates to a limited Article V convention to vote for unauthorized amendments contrary to legislative instructions and to provide a civil fine for the violation thereof” was considered first.

Prime sponsor Rep. Manny Steele said except for some “minor tweaks,” this is the same bill that was passed by this committee last year. Steele later explained that the key change in this year’s bill was that the penalty for a delegate not honoring their oath was a felony, but after conversations with some people, he decided this was too harsh and went with a civil penalty of a $5,000 fine instead.

William Fruth of the Balanced Budget Task Force spoke in favor of the bill. Fruth said a balanced budget amendment enjoys popular support even among liberals, and South Dakota and other states are already working to convene a convention to craft a balanced budget amendment. HB 1136 is the first step in the process of calling a constitutional convention, and it makes the statement that the states control the process, select their own delegates and have authority over the conduct of those delegates.

Fruth said there have been several conventions of the states in the past, and that there was an effort in the 1990s to do so. The process stalled only a few states short of the 34 required, and since then, 16 states have for various reasons rescinded their call.

One of the objections many people have to calling a constitutional convention is the assertion that the 1787 convention that created our U.S. Constitution was itself a “runaway convention.”

Fruth said that the congress of the confederation stated an OPINION in calling the convention, realizing that it had no authority.

Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.

With variances in the requirements from each state, 10 delegates went to the convention with full authority to create a new government, two only had permission to amend, and it was only those two (from Massachusetts) who violated their authority. Fruth also said that what ended up happening was that the delegates did not amend the Articles of Confederation, but scrapped them altogether.

Fruth said that court cases have already ruled that congress is an outside body to a constitutional convention and as such cannot affect what happens at the convention.

In opposition, Michael Boyle of Avon said that in congress being the body that calls the convention, it seems that it would have some measure of control over the convention. Boyle said the penalty of $5,000 if a delegate goes outside their authority seems small in comparison to the effect such an action could have on our entire nation. Boyle said he doubts that the state would be able to guarantee the outcome it seeks, even though he agrees that the budget should be balanced.

Boyle said a better way for states to come together to reduce spending would be for all the states to agree not to continue taking the massive amounts of federal spending they currently do. States need to assert that they will “take care of their own” and say “no” to federal money and federal control. If we want to balance the budget, said Boyle, why don’t we just balance the budget and determine to no longer take federal spending.

Michael Boyle of Parkston said many assumptions are being made in this issue. Boyle said that in the past, conventions have been closed and cloaked in secrecy, and if that were done in this case, we wouldn’t know whether our delegates had violated their authority or not. Even the $5,000 fine for violating their oath could be insignificant, Boyle said, because there would be no end to special interest groups who would be willing to pay that for them in exchange for voting their way.

Rita Houglum of South Dakota Eagle Forum said she doubted the authority of the states to limit the authority of their delegates and the scope of the convention. Dyre v. Blair in 1975, she said, found that state involvement in ratifying amendments derives from the federal constitution and this transcends any limitations by the states. Houglum cited a number of other cases which also found that requirements by states on delegates are “advisory only” and are not binding on the delegates.

Eldon Stahl of Mitchell said that when the convention of 1787 was finalizing a draft of Article V, originally it was only planned that congress be able to propose amendments. George Mason proposed that congress be required to call a convention of two-thirds of the states applied for a convention, but he did not propose that the states be able to determine those amendments.

HB 1136 passed 12-0:

Conzet Yea Gibson Yea Gosch Yea
Hunhoff (Bernie) Yea Killer Yea Munsterman Excused
Novstrup (David) Yea Parsley Yea Verchio Yea
Westra Yea Wink Yea Cronin Yea
Lust Yea

HJR 1004, “making formal application to Congress to call an Article V convention of the states for the sole purpose of proposing a federal balanced budget amendment, was heard next.

The bill’s prime sponsor Rep. Hal Wick said that when something like this was attempted in the 1970s, the national debt was less than $700 billion, and now the debt is $17 TRILLION. This debt is unsustainable, he said, and it is absolutely necessary that we pass this and get enough states onboard to require a balanced budget amendment.

William Fruth of the Balanced Budget Task Force also spoke in favor of the bill. Fruth said he has studied the economy and the national debt and we have reached a crisis situation both in deficits and debt. Fruth said congress will not do this themselves, and it is up to the states to do it. Situations like this, said Fruth, are why the founders put this option into Article V of the U.S. Constitution.

In opposition was Michael Boyle of Avon. He acknowledged that he and the proponents were on the same side in wanting fiscal responsibility for our nation, but that he did not believe this was the way to accomplish it.
Michael Boyle of Parkston said there is a burden of proof on the proponents of this bill that it is safe and is the best solution. Boyle said there is the question of who controls the convention, congress or the states, and asked whether we can trust congress to leave the states in control. He also mentioned fears that special interest groups could also taint the process. Further, Boyle questioned whether the scope of a convention could be limited to one amendment. Boyle also said that it is possible that congress could take the ratification authority away from the states and ratify amendments through a convention that ostensibly congress could appoint itself. Even if the states are the ratification authority, said Boyle, this is no guarantee that the states would stop a bad amendment. The states have already approved amendments taking the appointment of U.S. Senators away from the states, and passing an income tax. We also don’t know that liberal states like California would send conservative-minded delegates who want to protect the original intent of the Constitution like South Dakota, so even the delegates could corrupt the process. Boyle said that even if a good amendment was ratified, it is questionable whether congress would obey it. The real problem, said Boyle, isn’t so much congress as it is the people, because the people want the money congress is spending. If this spending was really against the will of the people, Boyle said, the people would vote them out of office. In this type of environment, likely the only way to balance the budget will be to raise taxes.

Ken Santema of Aberdeen said there is a $17 trillion debt right now, but most people don’t know that the federal government uses accounting tricks that would be illegal for businesses to hide the fact that our real debt is around $70 trillion when you consider items that are not on the actual balance sheet. Santema said that a balanced budget amendment would actually enshrine in the constitution the means by which congress uses creative accounting to hide debt.

Rita Houglum of South Dakota Eagle Forum joined in opposition, stating that it would be impossible balance the budget without large tax increases or deep cuts, and the states already are dependent on federal dollars.

Eldon Stahl of Mitchell said that James Madison said in Federalist No. 40 that when the founders abandoned the Articles of Confederation and created the U.S. Constitution, they did so under the justification of a national crisis. Stahl said it was easy to imagine radical action being taken by a constitutional convention under the same justification.

Cindy Flakoll Concerned Women of America also spoke in opposition.

In rebuttal, Wick said that no amendment exists until it has been crafted by the delegates, and then it has to be passed by at least 38 states. Wick said he believes the wisdom of the 50 states will give us the kind of budget our country needs. He said 74% of Americans favor a balanced budget amendment. Waiting longer risks a collapse of the system, said Wick.

The bill was amended to bring the language in line with that being proffered by other states:

On page 1 of the printed resolution, delete line 13.
On page 2, delete lines 1 to 7, inclusive, and insert:

WHEREAS, this application is to be considered as covering the same subject matter as the presently outstanding balanced budget applications from other states, including, but not limited to,”.
On page 2, line 21, delete “for the purpose of” and insert “limited to”.
On page 2, line 22, delete everything after “Constitution” .
On page 2, delete lines 23 and 24, and insert:
“requiring that in the absence of a national emergency, the total of all federal appropriations made by Congress for any fiscal year may not exceed the total of all estimated federal revenues for that fiscal year, together with any related and appropriate fiscal restraints; and”.

The bill passed 7-4:

Conzet Yea Gibson Yea Gosch Yea
Hunhoff (Bernie) Excused Killer Yea Munsterman Excused
Novstrup (David) Nay Parsley Nay Verchio Nay
Westra Yea Wink Nay Cronin Yea
Lust Yea

HJR 1005 “to apply for a Convention of the States under Article V of the Constitution of the United States” was scheduled to be heard Friday but was deferred by the chair. Since there were people present who had come to testify, brief testimony was allowed.

Rep. Isaac Latterell, the bill’s prime sponsor, said there were differences between the previous bill, HJR 1004, and his bill, HJR 1005. However, due to time limitations he did not get to discuss them at the time.

Michael Farris testified by phone. He said he is a constitutional lawyer who has litigated an Article V case. Farris said that states should support both the efforts of HJR 1004 and the Convention of the States effort outlined under HJR 1005 because we don’t know which separate effort will gain the support of the required number of states (34) first. Farris said the Convention of the States proposal is ensuring among all states that the language of the call is exactly the same, where there is some variation in the other (HJR 1004) effort that could lead to litigation that would protract the process.

Farris said that right now, the Constitution isn’t being followed, but rather Supreme Court rulings on the Constitution are being followed, and this effort would correct both the General Welfare Claus and the Commerce Clause by making clear the intent of the broad language under which they were written.

In opposition were Michael Boyle of Avon, Michael Boyle of Parkston, and Eldon Stahl of Mitchell.

HJR 1005 is scheduled for a hearing in the State Affairs Committee on Monday Feb. 10. Those who have concerns about this bill or the others may want to contact the committee members or other elected representatives before the hearing.


This article is printed with the permission of the author(s). Opinions expressed herein are the sole responsibility of the article’s author(s), or of the person(s) or organization(s) quoted therein, and do not necessarily represent those of American Clarion or Dakota Voice LLC.

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Bob Ellis has been the owner of media company Dakota Voice, LLC since 2005. He is a 10-year veteran of the United States Air Force, a political writer for the past decade, and has been involved in numerous election and public policy campaigns for nearly 20 years, including a Tea Party leader and organizer since 2009. He lives in Rapid City, South Dakota with his wife and two children.
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