There is a vigorous campaign to get the states to call a Constitutional Convention for the purposes of passing a “countermand amendment.” What is the countermand amendment? It is a rather lengthy amendment that purports to allow states to exercize their “unenumerated powers” in the 10th amendment. Further, according to advocates, they will call a “Countermand Amendment convention” for the sole purpose of passing the Countermand amendment. The name is presumably to placate those who oppose opening an Article V convention (despite the fact that there is no such kind of convention recognized in Article V, nor any prescribed limits placed upon it by the Constitution itself. Article V was not intended to be a “surgical strike” for a small failure or oversight (which was intended to be corrected via the single amendment process that has been used for all amendments passed to date. Article V was designed for an urgent systematic failure OF THE CONSTITUTION. This is an important distinction. Many of those who are calling for a Convention are doing so because of the results of repeatedly electing politicians who ignore the clear limits and prescriptions for power in the Constitution. As such, the problem is NOT the Constitution, and will NOT be solved by changing the Constitution, it will only be solved by electing politicians that abide by the written limits on their powers. The text of the amendment below is from the source:
Section 1. The Article restores State sovereignty in our Constitutional Republic by providing State Legislatures Countermand authority.
Section one states what the purpose of the amendment is supposed to be. However, in the Constitution, the only real matter of lost state sovereignty was the amendment that took from the states their representation in the Senate and converted it to a popular vote. The House was supposed to be the people’s house and the Senate was supposed to the representation of the States. The Countermand amendment does not address this key erosion of state sovereignty.
Section 2. State Legislatures in the several States shall have the authority to Countermand and rescind any Congressional Statute, Judicial decision, Executive Order, Treaty, government agency’s regulatory ruling, or any other government or non-government mandate (including excessive spending and credit) imposed on them when in the opinion of 60 percent of State Legislatures the law or ruling adversely affects their States’ interest. When the Countermand threshold has been reached, the law or ruling shall be immediately and automatically nullified and repealed. This Countermand authority shall also apply to existing laws and rulings.
This section which purportedly allows states to rescind (nullify) illegal federal actions, actually greatly constrains it. It only permits states to refuse illegal power grabs when 60% of the states agree it is an illegal power grab
Section 3. From the time the initial Countermand is issued by a State Legislature, the other Legislatures shall have 18 months to complete the Countermand process. If the Countermand process is not completed in 18 months, then the law or ruling that is being challenged shall remain enforceable.
Section 3 further reduces the power of nullification. It says that the 60% must come to an agreement that the power grab is illegal within 18 months! That is one year and 4 months. Many illegal regulations and laws do not have their worst aspects felt for a year or more from enactment. Obamacare has taken years to have its worst aspects start to be felt!
Even further than that, it gives these illegal power grabs the full force of law if the countermand process is not completed within 18 months! This is absolutely terrible. It would have given such power grabs as the fugitive slave law, REALid, and Obamacare the crown of proper legislation, and would have prevented any states from resisting these actions! Illegal laws and rulings are thus given the cover of the Supreme Law of the land if opposition can be stalled or stymied for 18 months!
Section 4. Each State Legislature must complete their Countermand affidavit and deliver a certified copy to the Chief Justice of the United States Supreme Court, the Leader of the United States Senate, the Speaker of the House of Representatives, the President of the United States, and when applicable the Government Agency or Body that is being challenged.
Section 4 is merely a procedural section.
Section 5. Any elected or non-elected government official, or any non-government individual or organization, who intentionally obstructs or prevents the implementation of any provision in this Article shall have committed a criminal offense and shall be subject to impeachment (when applicable) and criminal prosecution and upon conviction serve up to five years in prison.
Presumably, this would also apply to those state legislators, state or local courts, governors, and other officials who would attempt to continue to resist or nullify an illegal federal action beyond the 18 month window when such attempts were not joined and simultaneously completed by at least 60% of the states. 60% is highly unreasonable and 18 months is a severe limitation on the power of nullification.
Section 6. Individual States shall have authority to prosecute violators of this Article under State laws in the absence of Federal prosecution after 90 days from the date of the alleged violation. Multiple prosecutions, by multiple States, for the same alleged crime are prohibited.
Could this also be used by states who are supportive of the illegal federal power grab to prosecute those state officials who might continue to resist as well?
Section 7. The Article shall be immediately part of the United States Constitution upon ratification by three quarters of the State Legislatures in the several States.
Section 8. The provisions of this Article are enforceable within the United States which shall include the Several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands and the territories and possessions of the United States.
TLDR / Conclusion: States should neither pass the Countermand Amendment nor call for an Article V convention, as this amendment will severely curtail their 10th amendment rights to nullify unconstitutional government actions, and will give constitutional protection to illegal government actions, if opponents cannot muster 60% of state legislatures to join them, or if the federal government or its allies can stall the opposition for a mere 18 months.