Will Nevada Legislate Alternative Facts on the American Constitution?
By Samuel L. Fieldman
UPDATE: Common Cause is now rejoicing because the Eagle Forum, who has been fighting the Equal Rights Amendment since its founding by Phyllis Schlafly, has duped the entire Nevada Legislature. The Assembly passed SJR 10 unanimously without amendment. Wolf-PAC delivered this article and a proposed uncontroversial amendment to every member of the Assembly. The proposed amendment did not alter the purpose to which Common Cause claims to subscribe, only the Eagle Forum propaganda that disparages our founding fathers. The Eagle Forum sought a “handpicked democrat”. It seems they found what they were looking for. Common Cause opposes Wolf-PAC, who seeks free and fair elections, supposedly their top issue. But apparently they have found common cause with Phyllis Schlafly.
In 1897, the state of Indiana nearly passed a law that claimed π = 3.2. The intent was almost as misguided as the math, claiming to offer the solution to a math problem already proved to have no solution as a royalty free gift to the Indiana education system. Even though there are no royalties paid on mathematical results, not to mention the fact that we’ve had more accurate estimates of π for the last 3.5 thousand years, the bill passed one house unanimously and was on its way to becoming law until the Indianapolis Journal called it “the strangest bill that has ever passed an Indiana Assembly.” Indiana killed the bill at the last minute. The state of Nevada now stands on the same precipice with a resolution known as SJR 10. The Assembly must amend it or vote it down.
SJR 10 rescinds past efforts to use a little known but vital power of the states to call a convention with the authority to propose an amendment to the U.S. Constitution rather than the usual route of Congress writing an Amendment. This is an important tool to “erect barriers against the encroachments of the national authority,” as Alexander Hamilton put it in Federalist 85. Any proposed amendment by a convention would have the same ratification requirement as one proposed by Congress. Reasonable people can disagree about whether to rescind these past efforts, but this resolution needlessly uses propaganda to distort history, disparage our founding fathers, and fear monger with misinformation about the process they created.
The primary sponsor of SJR 10, Senator Tick Segerblom, appears not to have read his own resolution. His testimony on April 27th, unlike the resolution itself, was quite reasonable:
“Over the years, Nevada has passed resolutions requesting a constitutional convention. It’s not clear what those resolutions mean today, but just to make the record clear we’re going to wipe those all out so any resolutions that have previously been passed will be taken from the books and if this legislature or any future legislature wants to request a constitutional convention they can do it.
This is not 1979 Nevada [when the balanced budget amendment convention call was passed…] The thought that we would let the legislature from those years, 40 years ago, tell us what to do is really insane.”
Unfortunately, Senator Segerblom did not write SJR 10. Janine Hansen of the Eagle Forum did and her website refers to Senator Segerblom as “a handpicked democrat.” Eagle Forum founder Phyllis Schlafly famously defeated the Equal Rights Amendment 35 years ago. Ms. Hansen took up the same mantel this March when Nevada, decades after the deadline, finally ratified the Amendment overwhelmingly despite Ms. Hansen’s objections. Now that same legislature may pass SJR 10 without removing the Eagle Forum’s propaganda.
SJR 10 Slanders Our Founding Fathers
The resolution starts off by contradicting itself. In one breath, it slanders our founding fathers by saying they acted illegally when they wrote the Constitution. In the next, it says that this illegal product was “the Cornerstone of American liberty.” The latter sentiment is correct, but the former is not — it is a frequent fear-mongering tactic used by opponents of real change that has been thoroughly debunked by a majority of scholars.
The 1787 Constitutional Convention was not called by the Continental Congress to “amend” the Articles of Confederation as SJR 10 states. The Congressional Resolution authorized it to “revise” them and “report […] to Congress […] such alterations […] adequate to the exigencies of Government […].” The problems with the Articles of Confederation were so vast that the only adequate revision was a complete rewrite. Our founding fathers reported that fact back to Congress, as required, and Congress sent it on to the states after significant debate.
Further, the Convention was called pursuant to the Articles of Confederation, which was essentially a treaty of semi-autonomous nation-states that were free to pull out and found a new government. Among the weaknesses they saw in the Articles was the lack of a viable amendment procedure. From the very first draft written by James Madison, it was crucial that the “assent of the National Legislature ought not to be required” to amend the new Constitution. To that end, the 1787 Constitutional Convention wrote:
“The Congress […], on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which […] shall be valid […] when ratified by […] three fourths of the several states.” — U.S. Constitution, Article V
Founding fathers, including Alexander Hamilton, John Jay and John Lansing, wrote a letter to the thirteen States in 1788 after ratifying the Constitution to urge use of the Article V Convention procedure to procure the Bill of Rights that so many states demanded, often with specific lists. Virginia was the first to act, calling for an Article V Convention limited to “the defects [of] this constitution that have been suggested by the State Conventions [called to ratify it].” New York followed shortly afterward and that summer Congress proposed the Bill of Rights, marking the first time the Article V Convention process lead to a Constitutional Amendment.
SJR 10 Gets Basic Facts Wrong on the Nevada’s History of Using Article V
According to SJR 10, “the Nevada Legislature has, at various times, passed 4 resolutions requesting Congress to convene a convention.” But in his testimony, Senator Segerblom identified seven and had he done more careful research he would have discovered fifteen resolutions on nine different topics. Two of those convention applications, calling for direct election of senators and repeal of prohibition, ultimately resulted in the 17th and 21st Amendments. Nevada has a long, proud and effective history of using the Article V Convention process.
Most (15 out of 27) Amendments to the U.S. Constitution were at least partially a result of an effort for an Article V Convention. For example, in the original Constitution, the United States Senate was appointed by the state legislature, not elected by the people. The senators, naturally, wanted nothing to do with changing the process that got them into power, but the state legislatures are accountable to the people and so more than 30 states called for a convention to propose the amendment. Several states passed multiple resolutions on the topic to constantly renew the pressure on Congress to respond to the people. No state kept up the pressure more than Nevada. In the first decade of the 20th century, Nevada passed half a dozen calls for a convention for direct election of senators (only one of which was identified by Senator Segerblom). In March of 1907 alone Nevada passed two separate calls. This movement within the states changed the makeup of the Senate and changed the minds of the senators. By 1913, direct election of senators was ratified as the 17th Amendment.
Almost all of Nevada’s convention calls are now irrelevant. Some, like direct election of senators and repeal of prohibition, have already become part of the Constitution. Others, like anti-apportionment and school segregation, are products of their times with no prospect of reaching the 34 state threshold. The only convention call on Nevada’s books that is part of an active push for a convention today is the Balanced Budget Amendment. If the state of Nevada wants to clean up the books on outdated calls, that is uncontroversial. If the Nevada Legislature has rethought its policy position on the Balanced Budget Amendment, they should act accordingly. That was Senator Segerblom’s testimony, but not the text of his resolution.
SJR 10 Gets Basic Facts Wrong About How America Rises to a Challenge
The resolution praises the stability of our Constitution through events including the election of 1800, the Civil War, and the Great Depression. But we were not paralyzed with fear in the face of these challenges. Instead, we faced up to them by amending the Constitution. For example, the tied election of 1800 lead to the 12th amendment to fix a technical flaw in the electoral college. Unfortunately, after amending the young Constitution 12 times in 14 years we stopped for five decades, unable to resolve the divide that ultimately lead to the Civil War. But in the post-war era, among our greatest accomplishments was the ratification of the 13th, 14th, and 15th Amendments.
We again failed to amend the Constitution for the next four decades as the Robber Barons ruled in the Gilded Age. The Progressive Era that followed saw long-term political movements finally break through including direct election of senators and women’s suffrage. The Great Depression, also mentioned in the Resolution, lead directly to the 20th Amendment, which moved the inauguration of the President from March to January, eliminating two months of the lame duck period so a new President can address emergency situations. In the Civil Rights Era that followed, we ratified four Amendments in 10 years, three of which expanded civil rights.
That ended when the Eagle Forum killed the Equal Rights Amendment and similarly the D.C. Voting Rights Amendment failed. Although we did ratify the 27th Amendment in 1992, that Amendment was proposed over 200 years earlier. There is clearly a pattern: When long periods pass between amendments, social and political pressures build as in a pressure cooker. We haven’t proposed and ratified anything intended to deal with contemporary challenges since 1971, 46 years ago. In that time, the Robber Barons have returned. And now the Eagle Forum is putting forth its distorted history in SJR 10 to fight against important change.
SJR 10 Includes Blatant Fear-Mongering Propaganda from Conspiracy Theorists
Finally, the resolution goes on to threaten that a convention could “make sweeping changes” and “threaten the liberty of future generations.” This is nothing more than propaganda. It has been debunked by the Department of Justice, the Congressional Research Service, the American Bar Association, and top constitutional scholars from the liberal Lawrence Lessig to the conservative Rob Natelson, among many, many more. Any amendment proposed, whether by Congress or a Convention, must meet the same high bar of 38 states to ratify it. Alexander Hamilton himself said in Federalist 85:
“[I]t is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration.”
SJR 10 Needs to be Amended or Defeated Before it is Too Late
At the recent hearing on SJR 10, Nevada citizens and legal experts from around the nation testified in opposition, three minutes at a time, explaining all of this. It took nearly an hour. Senator Segerblom was present and in the end he said: “I didn’t anticipate a law school debate here, but actually it was pretty educational.” Over the course of the next week proposed amendments were given to several Assembly Members to remove the many embarrassing “alternative facts,” but on May 4th the committee approved the resolution unanimously without considering any amendments.
Just like Indiana 120 years ago, this resolution now heads to a final vote before the full Assembly after having passed unanimously in every previous vote. Indiana listened to the experts who warned them they were making a mistake that could be put to a test of a mathematical demonstration. Alexander Hamilton said the same about the misconceptions that riddle SJR 10. Will Nevada pass the same test?