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Sunday, January 13, 2019

Chapter 6: My Book on the Calling of the First Article V Convention of the States

Chapter Six



Monday, April 3, 2017
Evening

We turn to God for help when our foundations are shaking,
only to learn that it is God who is shaking them.

Charles G. West

“We’re fucked”.  Nancy Pelosi, the Minority Leader of the House of Representatives, sat back in her arm chair.  Senate Minority Leader Charles Schumer sitting to her right lowered his head and sighed. Mitch McConnell, on her left, sat stoned-faced and Paul Ryan looked back and forth at their attorneys, Peter Maier and William Pittard.

“Let me get this straight”, said Ryan, “Judge Garland has ordered us to call a Convention to propose amendments and is threatening to throw us in jail if we don’t?”

Maier looked pale.  “That is right”.

“Can he do that?” Ryan asked.

“Technically, he has the power to have you taken into custody for failing to obey his order to call the convention.  However, his order is questionable, legally speaking. So you can appeal his decision to the full panel of the D.C. Circuit Court of Appeals or to the Supreme Court.  He knows that and that is why he took us into his Chambers and privately told us what I just related.”

Pelosi spoke up. “That he would empanel a grand jury and appoint Blair Sibley as a special prosecutor to investigate Barack’s identity and the role of Karl Rove and the Republican Party in the D.C. Madam case.”

“And don’t forget the Larry Sinclair mess with Joe Biden’s son getting him arrested after his press conference claiming Barack was gay on those bad check charges and whisking him off to Delaware before he could do any real harm” Schumer said.  “That left a paper trail that traveled right up the ladder to Barack.”

McConnell jumped in.  “If we are putting our cards on the table, we don’t want Sibley looking into the D.C. Madam case, particularly after the Baltimore U.S. Attorney decided there wasn’t enough evidence to charge her.  Six months later, Karl Rove pushes Orrin Hatch’s boy, Jeffrey A. Taylor, who we immediately appointed as acting U.S. Attorney for the District of Columbia, to file charges and raid her house for her ‘Black Book’.  If we hadn’t got Judge Kessler removed from the case and replaced her with Judge Robertson and had Sibley suspended from the practice of law to remove him from the case, his subpoenas would have uncovered a very embarrassing situation.”

“As I said, we are fucked” Pelosi said.

Ryan leaned forward and said, “Look, we don’t have a choice.  So let’s make lemonade out of lemons. If we fight this Con-Con in anyway, the public is going to throw us all out of office.  Judge Garland has the high ground and he knows it. The approval rating of Congress has fallen to 16% and there is nothing the public would like to see more than us all thrown in jail.”

Schumer said, “Ryan’s right.  We probably should just make a public mea culpa, and call the damn Con Con.  Any resistance to this is going to be fatal to us.”

“But think of the implications” Pelosi cut it. “A Con Con can change the Constitution in fundamental ways that eliminates the power we have here in Washington, D.C. to run the country. And what if fringe elements from either end get in and add amendments outlawing abortion or allowing guns in school?”

“Congresswoman”, William Pittard interrupted. “A Con Con has no authority to do such any such thing.  The only power they are granted by Article V is to propose amendments which then have to be ratified by 3/4s of the states.  So while it is possible that such a fringe amendment might be proposed, it is very unlikely that it would ever get through 38 of the 50 state legislatures.”

Schumer jumped in. “Think this through; there will be so much in-fighting among special interests that nothing will be accomplished and the Con Con will disband without any sort of consensus on what amendments should be passed out to the States for their approval.  I think we are getting all worked up about nothing. Let it go and forget about it. It will self-destroy and we can then go on as before.”

Pittard continued, “Also, we have to file a brief in 10 days discussing what the procedure at the Con Con will be.  We have grounds to argue that the Con Con should be limited to one issue and we can tie up the Con Con in procedural battles so that it might just end up being a legal quagmire. And as you know, Congress has intentionally left the legal system in the 19th Century, so it will take years before anything actually comes of all this. In my experience, the public will lose interest overtime and this whole effort will be a cream of nothing.”

McConnell, Ryan, Pelosi and Schumer looked at each other in turn.  “All right” Pelosi spoke up, “stall on the legal end as much as possible.  We will craft a joint statement to be made tomorrow morning saying we are going to follow the Court’s order and call the Con Con.”

Ryan then said, “And let’s get all our Members in line to shut up about all this until we can brief them.”

“Agreed” Schumer said.

***

Predictably, the media went nuts.  A federal judge not only finding that Congress has failed to do its duty, but threatening to lock all 535 Members up unless they complied with his Order to call an Article V Constitutional Convention -- now called a Con Con by everyone.

At one end of the spectrum, the now-spectator Hillary Clinton was fear-mongering about the Constitutional Convention saying: “a constitutional convention to rewrite our Constitution to make it friendlier to business, to inject religious and ideological elements. So talk about radical change . . . a constitutional convention. Now, whether it ever finally gets ratified, I’m not sure, but it will be so divisive and it will rile up so much of our population, we will see the continuing efforts on the right to disenfranchise people, to roll back regulations that are good for our health and our environment and so much else, we will not recognize America.”

Yet, Ms. Clinton, who was licensed to practice law, should have known she was spouting nonsense.  A Convention of States only has the authority to propose amendments. It cannot change the American system of government. It cannot even change the Constitution without ratification by 38 states. Calling an Article V Convention of States a “constitutional convention” was a very poor choice of words — the kind of words meant to incite fear in an attempt to rob citizens of their power.

On the other end of the talking head spectrum where conservative commentators like Mark Levin who noted: “the irony of leftists arguing to ‘preserve the Constitution.’ The very forces that have undermined the Constitution, particularly on the Left. The very forces laugh at the Constitution, the very forces that call our founders and framers ‘slave owners’ and leave it at that. The very forces you saw represented on the Senate Judiciary Committee where one Democrat after another trashed our history, and trashed our founding, and trashed our heritage, and trashed our Constitution. . . Liberals have no intention of preserving the Constitution. They don’t even believe in the Constitution. They believe in a centralized, iron-fisted government with a massive bureaucracy to endlessly torment us!”

Yet the primary focus of the media was not on the legal nuances of a Con Con, but the idea that Congress could be thrown in jail.  The disdain for Congress and the Washington Establishment had found a flash point and the wildfire spread rapidly. Living in the bubble that is Washington, D.C., members of Congress lose interest in the People who sent them there and fall prey to those who they see every day -- the lobbyists and big money interests which make the stay in Congress possible. In simplest terms, Congress becomes loyal to its new Tribe as each Member abandons the Tribe that sent them to D.C. They fall prey to the various special interests in their daily physical world.

This is why it was no surprise that the flash polling data commissioned by the news media showed an overwhelming approval of Judge Garland’s threat to lock up Congress.  The second story leading the news was the absolute refusal of any Member of Congress to respond to questions about Judge Garland’s order.

***

The following morning, Pelosi, Schumer, Ryan and McConnell stood before a mass of reporters in the National Statuary Hall.  The location of the press conference was ironic, as the Hall consists of 100 statues contributed by 50 states, two statues each.  McConnell stepped forward to address the phalanx of reporters and cameras.

“Good morning, thank you all for coming on short notice.  The Democratic and Republican leadership has come together to address yesterday’s Order in Sibley v. McConnell and Ryan by the Honorably Merrick Brian Garland -- Chief Judge of the United States Court of Appeals for the District of Columbia Circuit.  I will be making a statement regarding that Order which has been approved by my colleagues here. As further litigation in the Sibley case is ongoing, we will be not be taking any questions at this time. Moreover each Member of Congress has been instructed by our attorneys not to speak about Judge Garland’s Order until the litigation has concluded.”

“That said, we have deep respect for our coordinate branch of government and Judge Garland in particular.  As such, we accept his judgment that we have not paid attention to our Article V duty to call a convention.  While we make no excuse for that failure, in our defense, we do note that the legal standard for calling such a Convention to Propose Amendments is murky and as such we were never sure when that duty was triggered.”

“But that is in the past.  Both Houses respect Judge Garland’s order and we will move expeditiously in the coming week to ‘call’ for the Article V convention.  Details are being worked out, but a joint session of Congress will convene to ‘call’ for the convention and provide sufficient funds for its organization.  Additionally, we will wait for further orders from Judge Garland on the procedures to be followed by Congress and the actual operation of the Convention. Thank you, that is all”.

The shouts of the reporters fell on deaf ears as the four Congressional leaders hustled out of the Statutory Hall.

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Sunday, January 6, 2019

Chapter 5: My Book on the Calling of the First Article V Convention of the States

Chapter Five


Monday, April 3, 2017
Afternoon

Laws are no longer made by a rational process of public
discussion; they are made by a process of blackmail and
intimidation, and they are executed in the same manner.
The typical lawmaker of today is a man
wholly devoid of principle.

H. L. Mencken

As the reporters scrambled forward in an attempt to get comments from the attorneys and a copy of the Order from the Clerk, a phalanx of U.S. Marshalls blocked access to both.  In the chaos, Rachel Hera, Judge Garland’s Law Clerk, approached Peter R. Maier, William Pittard and Blair and said: “The Judge would like to see you three in his chambers now.”  She then led the attorneys and Blair back to Judge Garland’s chambers.

Judge Garland had removed his black robe and was seated at his large desk.  He motioned Maier, Pittard and Blair to sit down before him. Rachel sat to the Judge’s right, notepad in hand.

“Gentleman”, Judge Garland began, “I am sure my order of today has caused quite a stir among the media what with the approval rating of Congress hovering around 16%. I expect it will light up the blogger-sphere and network news with comments.  However, before your clients react, I wanted to let them -- through you -- fully understand the consequence of any action save complete acquiesce to my orders of today. I fully understand your clients can move for a reconsideration or rehearing before this court or seek review by the U.S. Supreme Court.”

Judge Garland then leaned forward and spoke directly to Maier and Pittard staring at each of them in the eyes in turn. “In that event, I will, pursuant to Federal Rules of Criminal Procedure, Rule 6 and 18 U.S.C. § 3331, empanel a special grand jury and appoint Mr. Sibley as its independent, special prosecutor.  The charge I will give to that Grand Jury will be to investigate the D.C. Madam, Larry Sinclair and Mr. Obama’s real identity cases. I expect Mr. Sibley will reissue the subpoenas to the intelligence and law enforcement agencies that were suppressed in the original cases coincidental with his suspension from the practice of law under curious circumstances.  Your Republican clients, as well as members of the Democratic Party, will be well aware of what embarrassing details such an investigation by Mr. Sibley, with the power of a grand jury and this Court behind him, will reveal. So the choice will be theirs: Move forward and allow the States to have their Con-Con or Mr. Sibley will be looking into what really happened to Jeane Palfrey, the D.C. Madam and who is Barack Hussein Obama really.”

“Just to be clear, if any part of what I just told you reaches the public, I will immediately unleash Mr. Sibley and his grand jury. I look forward to your briefs on the procedures the Article V Convention should follow.  That is all.”

Rachel then stood up and motioned Maier, Pittard and Blair towards the door.  As the three men exited the chambers, Rachel slipped Blair a note that said: “Same place, tonight at 5 p.m.”

***

“Rachel, it is a pleasure to see you again” Blair said as Rachel walked towards him at the George Mason Memorial.  “Quite a day in court, wouldn’t you say?”

“Mr. Sibley, Judge Garland asked me to feel you out, I mean, make a proposition to you.”  Rachel blushed deeply as the implications of her double entendre became clear to her. Continuing, “Judge Garland would like to appoint you as Chairman of the Convention.”

Blair sat for a moment enjoying the pleasant visage of the still earnest, professional Rachel sitting before him.  “It’s funny he should ask” Blair started “for Francis Preston Blair called the convention to order which ultimately nominated Abraham Lincoln to run for President. So yes, I would be honored to so serve. But let me ask you a question Rachel.”  Blair turned so he was fully facing her. “What is in this for you? History is being made before your eyes and are you going to be an eyewitness or a part of it?”

Rachel held Blair’s gaze realizing this was something all her law school training and experiences hadn’t prepared her for. “What do you mean?”

“I want you,” Blair said, letting the phrase linger a few beats longer than customary “to be my deputy Chair for the convention.  It is going to be a lot of work, but the rewards will be great for you in your career. And just to be clear, I want to explore an intimate relationship with you but I will hereafter not raise the issue again.  As the humorist David Barry said, ‘Women need a reason, Men need a place.’ If and when you have a ‘reason’ that it is something that you would like to pursue, you must take the initiative. I won’t mention it again.”

Rachel was transfixed.  Looking into Blair’s eyes it was clear he was simply speaking plainly.  She held his gaze a few moments more then stood. “I will let Judge Garland know your response is agreeable to Chair the Convention.”  She turned and started to walk away but stopped after a few paces and turned back to Blair. “As to your second point about being your Deputy Chair, let’s just say I will demur at this time and take it under advisement.”  Rachel turned and walked a few more paces, stopped and turned again. “As for your last proposition, that too I will take under advisement”. She then turned and walked away without looking back.

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Sunday, December 30, 2018

Chapter 4: My Book on the Calling of the First Article V Convention of the States

Chapter Four


Monday, April 3, 2017
Morning

Come Senators, Congressmen
Please heed the call
Don't stand in the doorway
Don't block up the hall

Bob Dylan

“Oyez! Oyez! Oyez! All rise! All persons having business before the Circuit Court for the District of Columbia are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court. The Honorable Chief Judge Merrick Garland presiding.” The Bailiff then turned as the door behind the bench opened and all eyes watched as Judge Garland, berobed all in black, entered and took his seat before the packed courtroom.

“Please be seated.  Madam Clerk, please call the case docketed for this morning.”  Judge Garland said.

Sibley v. McConnell & Ryan, Case No.: 5259.” The Clerk said.

“Thank you Madam Clerk.  Would counsel please identify themselves for the record?”

“Peter R. Maier, Special Assistant United States Attorney, Counsel for the Honorable Mitch McConnell.”

“William Pittard, Deputy General Counsel for the Honorable Paul Davis Ryan”.

“Montgomery Blair Sibley, in proper per, your honor.”

“Thank you.  I have called you here today to announce the Court’s decision in Sibley v. McConnell & Ryan.  The reason for this extraordinary oral announcement will be made clear shortly and the written decision will be made available to all interested parties -- and I see a large number of the members of the Fourth Estate present -- at the conclusion of my rendering the decision.”

“While that written decision has the complete reasoning and specific case citations included, my oral decision today will omit those legal niceties in the interest of making this proceeding as clear and brief as possible.”

“In this appeal, Appellant, Montgomery Blair Sibley by the suit below sought: (i) A Declaratory Judgment that Sibley has the right, possessed by every United States Citizen, to require that the federal government be administered according to law; and, (ii) A Declaratory Judgment that Applications to Congress have been made by the Legislatures of two-thirds of the several States for a Convention for Proposing Amendments to the United States Constitution thereby obligating Congress to Call such a Convention which, to date, Congress has failed to call; and (iii) A Writ of Mandamus directing Congress to carry out the affirmative action of Calling for a Convention for Proposing Amendments to the United States Constitution.”

“As to the first issue, the Court agrees with Mr. Sibley that every Citizen has the right to require the government to be administered according to law.  To have such a right without a concomitant remedy would render such a right meaningless. Simply stated, the People did not create a system of law which does not satisfy certain moral minima for such would not to be a justice system but instead just-a-system.  Simply stated, an unjust positive law – such as the doctrine of “standing” that McConnell and Ryan argue prevents Mr. Sibley from bringing this suit – must be refused to be recognized by any judge if the injustice created by the law is so great that it no longer deserves the title of law.  Here, that injustice is the notion that no person can challenge Congress’ failure to discharge their obligation under Article V to “call” a convention.”

“In his second point, Sibley argued that Congress has the obligation to call an Article V Convention of the States as it has received the requisite 34 applications from the States -- a point that McConnell and Ryan do not dispute.”    

“Rather, McConnell argued that: ‘the Speech or Debate Clause of the Constitution, Article I, section 6, clause 1, bars Sibley’s claims because they arise out of an alleged failure to take legislative action.’  The Court agrees with Sibley that the Article I, section 6, clause 1, Speech or Debate Clause right cannot be conflated with the Article V duty to “call” a convention.”

“As expressed by those who knew the drafters of the Constitution: ‘The theory of the constitution undoubtedly is, that the great powers of the government are divided into separate departments; and so far as these powers are derived from the constitution, the departments may be regarded as independent of each other.  But beyond that, all are subject to regulations by law, touching the discharge of the duties required to be performed.’”

“Accordingly, Congress, no less that the Executive or Judicial branches, is ‘subject to regulation by law touching the discharge of the duties required to be performed.’  Among those ‘duties required to be performed’ by Congress is that ‘duty’ found at Article V, which states in pertinent part: ‘The Congress, . . . 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 . . .’

“The Court’s attention is drawn to the imperative verb ‘shall’.  It leaves no discretion in Congress and requires the purely ‘ministerial’ act of the ‘call’.  The definition of ‘ministerial’ is well-settled in the jurisprudence of the United States. In the 1866 case of Mississippi v. Johnson the Supreme Court stated: ‘A ministerial duty, the performance of which may, in proper cases, be required of the head of a department by judicial process, is one in respect to which nothing is left to discretion.  It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law. . . . There was no room for the exercise of judgment. The law required the performance of a single specific act; and that performance, it was held, might be required by mandamus.’”

“Here, Article V has prescribed a ‘simply, definite duty’ upon Congress.  The ‘conditions’ upon which this duty arises have been ‘proved to exist’ as demonstrated by the thirty-five (35) Applications referenced in Exhibit “A” to Sibley’s First Amended Complaint in this matter.”

“The Supreme Court agrees -- and thus so must this Court -- with Sibley when it stated in 1931 in United States v. Sprague: ‘[A]rticle 5 is clear in statement and in meaning, contains no ambiguity and calls for no resort to rules of construction. . . . It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses, or, on the application of the legislatures of two-thirds of the States, must call a convention to propose them.’”

“For this Court to allow Congress the liberty of refusing to avoid their express duty’ and then hide from review and enforcement of that duty under the Speech or Debate clause would render the promise of articulated by the Supreme Court in the 1922 case of Fairchild v. Hughes that every Citizen of the United States, possesses the general right: “to require that the Government be administered according to law. . . .” a right without a remedy and thus a cruel farce.  As such, the Court rejects McConnell’s argument that the Speech and Debate clause bars Sibley’s action.”

“Ryan on the other hand argues that Sibley is seeking to raise a nonjusticiable Political Question and thus this Court has no authority to intervene.”

“Alexander Hamilton in the Federalist No.: 85 stated: ‘It is this: that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congress will be obliged ‘on the application of the legislatures of two thirds of the States, to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof.”

“Accordingly, Ryan’s claim that he can ignore the ‘peremptory’ words of Article V by hiding behind the Political Question doctrine is an aberrant violation of the carefully-balanced distribution of power between the People, States and the federal government.  Simply stated, to bar Sibley’s suit by this judicially-created device of the Political Question defense would allow the central government to ignore the pleas of the States thus putting Hamilton’s promise to waste.”

“An Article V Convention ‘call’ is a textually demonstrable commitment to Congress to judge only the qualifications expressly set forth in the Constitution: Conducting a numeric count of the applications to determine that two-thirds of the States have applied for a convention.  At that time, Congress cannot refuse to ‘call’ a Convention once it has received – as it is agreed here that it has – 35 ‘applications’.

“At its heart, Article V acts as the cover letter.  It is a set of instructions that the Framers left providing the terms on which future generations may add a new chapter to our Constitutional chain novel.’   Hence, there is no ‘legislative Powers’ resident in an Article V act; to hold so would allow the federal Congress to erase the power of the States to ‘call’ a convention by setting impossible limits upon the triggering of the duty to make the obligatory ‘call’”.

“Therefore, the duty to ‘call’ an Article V Convention to Propose Amendments is not defeated by the Political Question doctrine.”

“In sum, the ministerial duty to ‘call’ an Article V Convention to Propose Amendments is not barred by either the Speech or Debate clause or the Political Question doctrine.”

“This brings me to Sibley’s final point: A request for an Order of this Court in the nature of Mandamus to direct Congress to discharge its Article V obligation.  Given the grotesque, long-standing and continued violation of Article V by Congress, this Court is taking the extraordinary measure of invoking its authority under the All Writs Act of 1789 to issue the following Order:  

“Within thirty days of today, Congress shall ‘call’ a Convention or be held in Contempt of Court for failing to do so.  In that event, the Court will order the U.S. Marshall Service to take every member of Congress into custody where they will remain until such time as their aforementioned Article V duty has been discharged.”

“Moreover, to avoid in prevarication by Messrs. McConnell and Ryan, let me make this clear.  The ‘call’ shall: (i) set the convention no more than 6 months from today to be held in Washington, D.C. and (ii) set asides funds of initially no less than $10 million to cover the costs of the logistics of holding such a Convention.

“Last, in the interest of judicial economy, the parties will submit to the Court legal briefs within 10 days outlining the procedures such an Article V Convention should follow.  Upon the Court’s review of those legal briefs, the Court will issue its order governing the procedures for the Convention.

“It is so ordered.”

Judge Garland stood and said: “The Court is now in recess” and promptly left the Courtroom which, not unexpectedly, erupted into pandemonium.

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