Are we going to tell them how to vote too? House Bill 1069 is just bad legislation.

A legislative measure has been presented to the state legislature with regards to the conduct of legislators acting as delegates to a national constitutional convention. It says in part:

Section 2. No delegate from South Dakota to an Article V convention has the authority to vote to allow consideration of or vote to approve an unauthorized amendment for ratification to the United States of America Constitution. Any delegate casting a vote to allow consideration or approval of an unauthorized amendment shall be immediately recalled by the secretary of state and replaced by an alternate chosen by the Executive Board of the Legislative Research Council.
Section 3. Every candidate for delegate or alternate from South Dakota to the Article V convention shall take the following oath:
“I do solemnly swear or affirm that to the best of my abilities, I will, as a delegate or alternate to an Article V convention, uphold the Constitution and laws of the United States of America and the State of South Dakota. I will not vote to allow consideration of or to approve any unauthorized amendment proposed for ratification to the United States of America Constitution.”

Read it here.

This legislation is coming on the heels of proposals for the states to call a constitutional convention for the purpose of amending the US Constitution in a non-traditional manner, which is allowed by law. Instead of the state’s ratifying amendments directly, they’d send delegates to a convention.

Not a bad thought at all, but as more time goes by between the time when this was first brought up, and a time when states are going to be able to pull it off, paranoia is apparently setting in.

“I do solemnly swear or affirm that to the best of my abilities….. I will not vote to allow consideration of or to approve any unauthorized amendment proposed for ratification to the United States of America Constitution.”

Um. Yeah. Is it just me, or is that kind of a dumb thing to put in an oath? If they’re going to put that type of proviso onto what the delegate is going to vote for, why don’t they tell him how he’s going to cast his ballot? And if they’re going to do that, why hold a convention of this type, as opposed to amending the constitution in the traditional manner?

The best part?

Section 5. Any delegate who violates the oath contained in section 3 of this Act is subject to a civil fine of not more than five thousand dollars to be levied by the secretary of state and deposited in the state general fund.

What!?! And we’re going to attach a weird civil/criminal penalty to it as well?

First off, The obvious way around it is to simply attach unrelated acts to the main amendment (just like Congress does), leaving the original title and intent. It would allow participants for such a convention to cast their ballot in compliance with.

Secondly, you have to consider who we’re sending to this type of convention.

The people elected to the legislature have been elected by the people of their respective legislative districts to represent their voice in the state Capitol. So, they’re entrusted with doing the right thing by taxpayers to start. The people selected to go to this type of constitutional convention would be chosen by this august group, the South Dakota State Legislature, by those people we chose to send to Pierre.

So allegedly, the ones going to this type of convention are not our best. They’re ‘the best of the best.’

Shouldn’t we be able to entrust them to discuss, debate and amend amongst their peers from other states in this incubator of Democracy? Shouldn’t we be able to entrust them to conduct the types of discussions and formulate policies, the likes of which haven’t been seen since the Bill of Rights?

Putting this kind of limitation on delegates seems…. small. And in direct opposition to the reasons we’d conduct a grand experiment in Democracy such as a constitutional convention.

8 Replies to “Are we going to tell them how to vote too? House Bill 1069 is just bad legislation.”

  1. anon

    does it have the requisite section where the person in violation may not ever run for any public office or be considered for appointment to any office or board for the rest of their life? maybe that’s just a given now.

    Reply
  2. Anonymous

    Correct me if I am wrong.. This would be unenforceable if the Constitutional Convention was held in another state (which it more then heck would be).

    Just another problem with the concept of having such a convention.

    The other problem? Their balanced budget amendment proposal has no tax increase protection provisions. Enact this? Congress has a mandate to raise taxes to balance the budget.

    The other problem, that they are trying to clumsily fix? Call a convention and they run the risk of opening up the Constitution. We need to remember, this is the country that elected/re-elected liberal President Obama. Imagine a majority of delegates wanting to strike the 2nd Amendment, or enact an Amendment making wholesale abortion a Constitutional right.

    SD has a balanced budget amendment and our own legislators/governor have simply ignored those provisions in the past.

    Reply
  3. Anonymous

    the proponent argument is that since it’s an article-five convention you can’t bring in or create new amendments, you have to convene to consider the specific proposal. a more full debate about the scope of authority of such a convened body is needed i think. the whole language being debated here seems to suggest that after you convene a “limited scope” convention, you then need to muzzle it or limit its scope, so what is the danger being addressed here? don’t have the convention then if it opens pandora’s box.

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    1. Anonymous

      i am personally skeptical of balanced budget amendments anyway. the implication in the budgeting process is that the budget is balanced in some fashion that allows financial matters to conform to law and move forward. and at the federal level, the law needs to be sufficiently complex to address the various types of debts and revenues dealt with at the federal level. does a balance budget also have to pay down the overall national debt? at what rate, it won’t be cleared in a single year or decade. how must the social security trust fund be set up and maintained? how transparent will the fed have to be? this is huge and the simplistic constitutional amendment that’ll take a decade or more to even enact possibly won’t be adequate to address the real situation at that future time when it goes into effect. it would be far better for a competent leader with a clear plan to straighten the fiscal house to go to congress under existing law and clean things up. until that leader comes along, boehner and mcconnell can go a long way toward establishing what that cleanup should look like and i think they will.

      Reply
  4. Mark N.

    I’m in favor of an Art. V convention for a balanced budget amendment, but this is bad attempt at enforcement. The state legislature can’t tell our US representative or US senators how to vote any more than it can tell a delegate to this convention how to vote. What if the convention amends the proposal slightly? Does the delegate get fined or recalled if he or she still supports it as amended? It would take 2/3 of the States to call the convention, but any amendment proposed by this convention will still have to be ratified by 3/4 of the States. So even if it went off the rails (which I think is unlikely), the States can simply not ratify anything they don’t like. The Framers included this amendment process as a way for the States to reign in the federal government. We shouldn’t be afraid to use it.

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  5. Troy Jones

    Mark N.,

    I second your statement. The only way this will ultimately have any effect is if people sent have freedom to be statesmen (as it was with our Founders) and the States each then have ability to vote up/down on the outcome.

    The “root” of this control mechanism is fear of a rogue convention. If we don’t trust who we send and or the requirement of 3/4 of the state’s ratifying it, we shouldn’t do it at all. Otherwise, trust our system to work.

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  6. Anonymous

    the potential for serious modification of the constitution exists. i say don’t do it. it’s much more efficient to urge the republicans in congress to be the statesmen and get to work on a plan to repair the finances while not falling for the headfakes of their political opponents. repair and campaign all day about the broken system while you fix it. don’t just expect the fixes to speak for themselves or the black hand will flip you all out of office again. fight for a better way and be ready for everyone who’d stop you. be loud and clear about what’s at stake and why your opponents are wrong every step of the way.

    Reply

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