Testimony
of
Steve Davies
House Resolution 206
Senate Resolution 234
House and Senate State Government Committees
October 22, 2019
Chair Everett, Chair Phillips-Hill, distinguished members
of
the House and Senate State
Government Committees, thank you
for
this
opportunity
to
present testimony
in
support
of
House Resolution
(HR)
206 and Senate Resolution
(SR)
234.
HR
206 and
SR
234
are
concurrent
resolutions and, once adopted by respective chambers
of
the General Assembly, will serve
as
the
application
to
Congress by Pennsylvania under Article V
of
the
US
Constitution
for
a
convention
to
consider and propose amendments
to
the Constitution related
to
term limits
for
federal officials, restrictions on federal spending and limits
on
federal scope and jurisdiction.
My
name
is
Steve Davies, I live at 565 Hollow
Road
in Beaver County,
PA.
I
am
married,
retired, and have three adult children. Since March 2014 I have been a volunteer
for
the
Convention
of
States Project
(COSP)
and have served in a variety
of
leadership roles over
that
period. I
am
not
a grassroots activist nor a political activist. I have never run
for
nor held
an
elected office.
Our republic
is
in
big trouble. Apathy towards and ignorance
of
our
inalienable rights, our
founding and constitutional principles by successive generations
of
Americans over the past
100 years
or
so
have resulted
in
government policies and programs
that
destroy individual
freedom and liberty by design. We elect people
to
public office based on
their
promises
to
benefit
us
at
the
expense
of
other
citizens. We have essentially turned the Constitution into a
fiscal suicide pact, and
in
doing
so
may have consigned our children and grandchildren
to
a
lifetime
of
economic servitude. The game seems permanently rigged
in
favor
of
a ruling elite
in Washington,
DC,
and most Americans believe there
is
no recourse except via federal
elections. That all changed
for
me
in
2013
after
reading Mark Levin's book,
The
Liberty
Amendments.
It
became clear
to
me
that
there
is
a way
to
restore
the
Constitution and its
original
intent
without
relying solely on federal election outcomes and actions by those
in
federal elected offices,
but
it
requires the coordinated efforts
of
ordinary citizens at the state,
not
federal level.
After
reviewing the
COSP
resolution,
it
was
my initial belief
that
an
Article V convention
application
for
the listed topics should enjoy strong support from Pennsylvania state
legislators and should
not
be
difficult
to
get passed. A concurrent resolution
is
solely
an
action
of
the General Assembly,
with
no approval by the governor required. The resolution
is
obviously
not
legislation, does
not
involve money
or
taxes,
is
bipartisan
in
nature
and
could
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the states consistent
with
the separation
of
powers
as
outlined in the Constitution.
The resolution does nothing more than document Pennsylvania's official position
that
a
convention should
be
called
to
discuss and potentially officially propose amendments
to
the
Constitution related
to
three specific topics. The convention delegates would
have
no power
to
change anything. All
they
would
be
able
to
do
is
discuss and propose amendments. Any
proposed amendments passed
by
the convention would have
to
be
sent
to
the States
for
ratification per Article
V,
and at least 38 States would have
to
ratify
an
amendment
for
it
to
become law.
In
effect,
an
Article V convention
has
comparable authority relative
to
establishing federal law
as
that
of
a committee
of
state legislators relative
to
establishing state
law.
I recognized there would
be
some opposition
to
convening
an
Article V convention
for
the
topics specified
in
the resolution.
Some
people believe
that
the federal government
is
not
doing enough; consequently, any reduction in
or
restriction
of
what
the federal government
does
is
unacceptable. I understand their minds will likely never be changed. What
has
surprised me
is
that
there are people
who
believe
an
Article V convention should never
be
called
for
any purpose. They agree
that
the issues addressed
in
the
COSP
resolution need
to
be
addressed; however,
they
fear a convention could result
in
completely unintended
consequences, like a
new
Constitution
and/or
adversely impact the Bill
of
Rights, especially the
Second Amendment.
This argument
is
based on the belief
that
the 1787 Philadelphia Convention was
in
fact a
"runaway" convention, and
that
the delegates, despite being limited
to
only developing
amendments
and
alterations
to
the Articles
of
Confederation ("Articles"), instead proposed a
new constitution.
In
addition,
it
is
believed the delegates proposed a ratification process
that
was not consistent
with
the
convention call.
As
a result, they believe
there
is
a material risk
that
an
Article V convention, once assembled, could in effect ignore the convention call and
any delegation directives from the state legislatures and
not
only significantly
weaken/eliminate Constitutional protections
for
the
states and individuals,
but
even produce
a new constitution.
This view
is
not
supported by the historical record. To understand why
the
runaway
convention argument
is
advanced, several historical events in the months
prior
to
and
immediately
after
the start
of
the convention need
to
be
pointed out. These events are
summarized below:
Date
Action
November
23,
1786
Virginia establishes a delegation
to
attend
the
1787
Philadelphia Convention
November
24,
1786
New Jersey establishes a delegation
to
attend
the
1787
Philadelphia Convention
December
30,
1786
Pennsylvania establishes a delegation
to
attend
the
1787
Philadelphia Convention
January
6,
1787
North
Carolina establishes a delegation
to
attend
the
1787
Philadelphia Convention
February
3,
1787
Delaware establishes a delegation
to
attend
the
1787
Philadelphia Convention
February 10, 1787
Georgia establishes a delegation
to
attend
the
1787
Philadelphia Convention
Congress passes
resolution
stating
a
convention
in
February 21, 1787
Philadelphia
in
May, 1787
would
be
expedient;
resolution
language reflects sole purpose
would
be
to
amend
the
Articles
of
Confederation
February
28,
1787
New York establishes a delegation
to
attend
the
1787
Philadelphia Convention
March
7,
1787
Massachusetts establishes a delegation
to
attend
the
1787
Philadelphia Convention
March
8,
1787
South Carolina establishes a delegation
to
attend
the
1787
Philadelphia Convention
May
17, 1787
Connecticut establishes a delegation
to
attend
the
1787
Philadelphia Convention
May
26,
1787
Maryland establishes a delegation
to
attend
the
1787
Philadelphia Convention
June
27,
1787
New Hampshire establishes a delegation
to
attend
the
1787
Philadelphia Convention
At
the
core
of
the
runaway convention concern
is
the
belief
that
the
resolution passed by
Congress on February 21, 1787,
as
shown in
the
table above, was the call
for
the convention
and defined its scope. That resolution language
is:
"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
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Congress and confirmed by the states render the federal constitution adequate to
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of
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of
the Union."
(see
https://histcsac.wiscweb.wisc.edu/wp-content/uploads/sites/281/2018/03/Confederation-
Congress-Call-Constitutional-Convention.p
df
)
It
is
clear the resolution contains
two
specific provisions related
to
the
convention:
(1)
it
is
for
"the
sole and express purpose
of
revising
the
Articles
of
Confederation", and
(2)
any
alterations/provisions must
be
"
...
agreed
to
in Congress and confirmed by
the
states
...
".
This resolution
is
the
basis
for
the "runaway convention" argument
that
opponents are using
to
try
to
stop
passage
of
the
COSP
and
other
Article V convention resolutions. They argue
that
the delegates
to
the
1787 convention ignored
the
convention call by proposing a new
Constitution rather than amendments
to
the
Articles, and by proposing a
ratification/confirmation process
that
allowed
for
something
other
than unanimous approval
by the 13 states. Consequently, they allege,
the
delegates
to
an
Article V convention, no
matter
what
it
is
called for, are free
to
change any aspect
of
the Constitution, including
replacing it, and are free
to
set a much lower bar
for
ratification
of
whatever
they propose.
This, opponents claim,
is
a risk we cannot take.
The problem
with
this logic
is
the fact
that
the
February
21,
1787 action by Congress was
not
the convention call. That occurred
in
November 1786 when Virginia
took
official action
to
invite the states
to
send delegations
to
Philadelphia the following year. None
of
the
six
states
that
commissioned
their
delegations prior
to
passage
of
the
Feb
21, 1787 resolution by
Congress limited
their
delegates
to
only proposing amendments
to
the
Articles. Of the
remaining
six
states, only
two
(NY
and Mass) limited
their
delegations
to
only considering
amendments
to
the
existing Articles. There are
other
facts
that
do
not
support the runaway
convention allegation:
• There
is
nothing in
the
Articles
of
Confederation
that
suggests Congress
had
any power
to
call a convention
for
the purpose
of
amending
the
Articles.
• The
Feb
21,
1787 resolution did
not
contain
two
key elements
of
a formal convention
call:
it
was
not
addressed
to
the
states, and
it
did
not
follow
the normal congressional
protocol
for
submitting measures
for
consideration by
the
states.
•
At
the
convention on July
23,
1787, Governeur Morris made this statement during
convention proceedings:
"The amendment moved by
Mr.
Elseworth
[sic]
erroneously supposes
that
we are
proceeding on the
basis
of
the Confederation. This Convention
is
unknown
to
the
Confederation".
(see
http://oll.libertyfund.org/titles
/farrand-the-records-of-the-federal-
convention-of-1787-vol-2 at
92
)
No delegates expressed opposition
to
this statement.
• When
the
convention ended,
the
Articles were still
in
full force and effect.
The
convention
work
products were a Ratification and Transition
Plan
and the Constitution.
They were transmitted
to
Congress and
the
states. Absent affirmative action by the
states, the Constitution would never have gone into effect irrespective
of
anything
said
or
done during
the
convention.
• All 13 states
took
action
to
establish ratification conventions
as
recommended by
the
Transition and Ratification Plan, including Rhode Island, which had boycotted the
convention, and
NY,
whose delegation (except Hamilton,
who
did
not
vote)
left
the
convention before
it
ended. Pennsylvania was the first state do
so,
having taken action
to
establish a ratification convention on September
29,
1787.
•
On
February
1,
1788, the New York legislature, which had instructed its delegation
to
only consider amendments
to
the
Articles, and whose delegation cast no votes
in
the
convention
after
July, rejected a motion
to
condemn the Convention
for
violating its
instructions (see
the
Harvard Journal
of
Law and Public Policy, Volume 40, Number
1,
April 2017, page 118)
•
As
set
forth
in
the
Ratification
Plan
and
in
Article
VII
of
the
Constitution, no state
that
did
not
ratify
the
Constitution could
be
bound by it. At no
point
did any state lose its
right
to
reject
the
Constitution, and
the
Convention had no ability
to
force any state
to
accept
the
new Constitution.
• Finally, and
most
importantly, unlike
the
Articles,
the
Constitution does contain a
provision
that
outlines
the
process
for
proposing amendments via a convention. The
Framers were clear
that
they wanted
the
states
to
be
able
to
propose amendments
in
the
event Congress refused
to
do
so.
They no
doubt
recognized
that
not
having a
convention option outlined
in
the
Articles had caused them much difficulty.
Consequently,
in
drafting Article
V,
they
specified
who
calls the convention,
that
the
convention scope
is
limited
to
amending the Constitution (and consequently not
proposing a new one) and they specified the ratification process. Clearly the Framers
intended an Article V convention
to
be very
different
from
the
convention they
experienced
in
1787. Opponents commonly
use
the
term
"constitutional convention"
to
refer
to
both types
of
conventions. This, along
with
insisting
the
1787 convention
was
a
"runaway convention"
is
obviously a deliberate tactic
to
create
as
much confusion and
fear on
the
part
of
average citizens regarding
an
Article V convention
as
possible.
Probably the most comprehensive and well-researched scholarship on
the
topic
of
whether
the 1787 Philadelphia Convention was a runaway convention
is
work
done by Michael Farris,
J.D.,
and published
in
the
Harvard Journal
of
Law and Public Policy, Volume 40, Number 1
(cited above). I encourage members
of
the
Committee
to
have
their
staff
review this
document.
In
addition, I encourage a detailed review
of
the
attached memorandum (Attachment
A)
from
Mark Meckler and Rita Dunaway
to
the Pennsylvania Senate and House State Government
Committee members dated April 19, 2019. This memorandum lays
out
a point-by-point
response
to
the
"runaway convention" claims.
Final Comments
At
the core
of
the
COSP
effort
is
how
this question
is
going
to
be answered:
"Who
is
going
to
make decisions about
what
is
best
for
the
citizens
of
Pennsylvania?" For
the
past 100 or
so
years,
the
answer increasingly
has
been
the
federal government, which
is
overwhelmingly
comprised
of
people
who
know nothing
about
what's best
for
Pennsylvania.
As
the federal
government continues
to
drive the republic
to
a fiscal disaster,
it
is
time
for
the People
to
remember
how
the
federal government came into existence and
for
what
purposes. The
federal government exists at the pleasure
of
the
elected officials and citizens
of
the states.
The collective will
of
38 states
is
all
it
takes
to
repe.
al
any law, rule, regulation, executive
order
and federal court decision, including those by
the
Supreme Court. The federal government
can
and
must
be
controlled by the People, both by direct election
of
federal officials and by
their
state legislatures exercising
the
will
of
the
People
via
Article V and all
other
constitutional
tools. The federal government needs
to
be
restrained and re-calibrated consistent
with
original intent. And action by the state legislatures
is
how
that
process starts.
As
the members
of
the
Committee may know, there were more signers
of
the
Declaration
of
Independence and the Constitution
from
Pennsylvania than any
other
state. The Declaration
was signed by members
of
the Continental Congress
in
Philadelphia. The Constitution was
created
in
Philadelphia. Pennsylvania has a unique place among
the
states
with
respect
to
the
creation
of
the Republic. And Pennsylvania should
be
a leader
in
restoring the foundational
law
of
the Republic and in restoring freedom and liberty
to
all Americans.
If
for
some reason you believe
an
Article V convention
is
in
any way a risky undertaking, I urge
you
to
carefully analyze
the
historical record
of
the
events leading up
to
the 1787 Philadelphia
Convention
and
the events prior
to
formation
of
the new government
in
1789,
and
especially
those actions taken by the Pennsylvania General Assembly.
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amendments convention application based on a false version
of
US
(and Pennsylvania) history.
I urge you
to
consider these actions by
the
Pennsylvania General Assembly
in
1786-87
in
evaluating the claims
that
the 1787 Philadelphia Convention delegates exceeded their
authority:
• Attachment
B:
An
Act Appointing Deputies
to
the Convention, December
30,
1786
• Attachment
C:
Resolutions Establishing a State Ratification Convention, September
29,
1787
