FairTax 5: Amended

One of my goals for 2016 is to promote amending the Constitution through a convention as proposed in its Article V. And one of those amendments concerns the FairTax.

I had suggested that the FairTax would best be implemented through an amendment process, to make certain that there was no temptation to do sales AND income taxes. This actually is required in the FairTax bill: the 16th amendment providing for income tax must be repealed before the FairTax law takes effect, so it guarantees that there will be no double-taxation.

I noted that the amendment repealing the 16th is could be done through the states, bypassing Congress who would not be much motivated to reduce their own power. This got a response, and I’ve lightly edited my reply here:

Tom wrote: “Keith, the amendment process doesn’t bypass Congress, it has to ORIGINATE with Congress unless it results from a Constitutional Convention called by 2/3 of the state legislatures. To date, none of the 27 constitutional amendments have originated outside of Congress.”

Interesting. You almost seem to be saying that I am wrong unless I am right, which you admit in the second part of your sentence after “unless.” And yet you sound as if you disagree that it is possible, because the provision hasn’t been used so far.

But I’d offer a couple of corrections:

Three-Fourths of the States

First, it’s not a “Constitutional Convention.” Those are to form a new constitution, by definition, and there is no provision to do that in the current US Constitution. And thus no possibility of a “runaway convention” as some commentators have been touting.

Even a new amendment that says “The entire Constitution is hereby nullified and replaced with Special Interest Group’s Wet Dream as of the ratification of this Amendment” would still have to be ratified by 38 states, three-fourths of the total.

A trivia bit: The Bill of Rights was ratified in this manner almost two years after the United States was formed — but there was a race between states ratifying the amendments and states being added to the Union, making “three-fouths” a bit tricky. At one point, eight states had ratified the Amendments of the eleven that had ratified the Constitution itself. Then joined the last of the original thirteen, and soon enough Vermont and Kentucky became the 14th and 15th states while things were still getting rolling. It was tricky to determine when these ratifications actually took place; Kentucky’s ratification was not formally acknowledged for almost five years after it happened.

Not a Constitutional Convention

The proper name for the convention (as noted in Article V of the Constitution) calls it a “Convention for proposing amendments” — reasonable enough, considering that this is exactly what it does. The phrase “Constitutional Convention” does not appear.

It is true that none of the Bill of Rights nor the later amendments were put through this way … but in fact, several amendment movements originated this way, and Congress was motivated to head them off by proposing their own as a sort of compromise to stop the states from realizing the power they have.

Once the states create such a convention, Congress (and the White House) have no choice but to go along. The language “shall call” is used, i.e., it is mandatory. Here’s the language, and I’ve called out the pertinent part:

“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, 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; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

Once two-thirds of the states agree on an amendment, and three-fourths of the states ratify it, it is part of the Constitution as much as if it had been originally included. Some ratifications go quickly, some have taken more than a century. But perhaps even the fear of such a possibility might encourage Congress to behave a little better — and that would be a good thing on its own.

In my opinion, an amendment repealing and replacing the 16th amendment (income tax) with a new one (the FairTax) is very possible. Not easy, of course, but that does not mean we shouldn’t try.

==============/ Keith DeHavelle

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