Did Michigan trigger a constitutional convention?

HotAir.com ^ | April 2, 2014 | Ed Morrissey

[12th_Monkey]

We often hear talk about pressing for a constitutional convention as a means to address issues that Congress keeps avoiding, especially on debt and spending levels as well as intrusion on states’ rights. States have that option, as long as two-thirds agree on a demand for such a meeting — which hasn’t taken place since the US Constitution was put forward more than 220 years ago. Did a recent call from Michigan for action on balancing the budget hit the two-thirds mark?

A similar issue came up during the debate over the Equal Rights Amendment, which stalled and died in the 1980s. Some states voted to ratify the amendment but then changed their collective minds, and voted to rescind their ratification. The Supreme Court ruled that the rescissions were valid in Idaho v Freeman in 1982, and the ERA ended up dying on the vine partly as a result. The first arbiter of this question will be Congress itself, but any legal action challenging the validity of the count at 34 would likely refer back to the 1982 decision. It’s more likely that the count is 23 rather than 34, in practical terms.

Should we encourage the move to a Constitutional convention? Mark Levin is the most prominent advocate for it, and his reasoning is solid. The option exists as a check on federal power so that it allows states to rein in an acquisitive Congress or executive. After ObamaCare and the borrowing sprees of the last several years in particular, it’s all but impossible to argue that those conditions don’t exist at the moment.

Still, it’s an interesting debate, if still a bit academic at the moment. We’ll see what Congress thinks of the count, and see whether it ends up going through the judiciary.

[Carry_Okie]

One more time.

OK, how about four more times... I've talked about this here, here, here, and here. There are probably more.

Yes, we have had much of this discussion about the Constitution's flaws before, and you agreed that what I regarded as deficiencies are legitimate criticisms of the Constitution as ratified. We disagreed about the degree to which Henry or Jefferson (had he been present) could have changed that. I suspect foul play was one of the reasons he was not there. Are you changing your mind about those problems?

Levin's "Liberty Amendments" do not address those deficiencies. I expect him to fix it or I will continue to criticize his plan publicly. Yes, I have flagged him on those threads and FR mailed him on the topic, but I have not heard any change. I guess he's just too important to bother with peons like FReepers.

[Jacquerie]

Take it easy. The “one more time” was a jab at myself for an earlier mis-post.

I regard Levin's proposed amendments as effective, structural changes. They will make the government far more federal than the plan of 1787. What amendments do you propose instead?

[Carry_Okie]

Take it easy. The “one more time” was a jab at myself for an earlier mis-post.

Sorry, I took it in the context of our exchange alone.

What amendments do you propose instead?

I have only heard Levin talk about his amendments; I have not read his book. Most of what I heard as deficiencies were omissions. Here is my off the top of my head list:

1. Change the supremacy clause to make unambiguous that any treaty provision that incorporates powers not specifically enumerated in the Constitution renders the treaty void in its entirety. That would include unconstitutional treaties already in force.

2. Render any multilateral treaty void. Screw the UN. Agreements must be concluded, allowing no change thereafter.

3. Require that any international agreement must be by treaty. Screw the WTO.

4. Render any treaty that allows agreements or decisions to be made by any governing body after its ratification void. Our laws should be made by our elected representatives, only. Screw any number of UN "Secretariats."

5. Change the manner of treaty ratification in Article II, Section 2, Clause 2 to to require ratification of a treaty by 3/4 of the State legislatures, similar to a Constitutional Amendment.

6. Clarify the Citizenship Clause of the 14th Amendment to apply to natural persons, only. Corporations are not citizens and must be subject to State laws. Let Natural Law competition do its job.

7. Clarify the Citizenship Clause of the 14th Amendment to make unmistakeable that a child born of foreign parents in the US is a foreign citizen. We don't put press gangs into hospitals with claims for taxes on babies. If they grow up in America they should have an inside track for naturalization.

8. Clarify that the States may structure their state senates such that their State Senators are selected by their counties boards, much the way the pre-17th Amendment Senate was constructed.

I haven't thought about this in a long time. Too busy with other issues. But for discussion purposes, that might make a good start.

[stevie_d_64]

Apparently the current crop of manure on the left is doing things outside the Constitution and the law of the land...

I for one do not believe it takes a Con-Con to solve it...

If enough people got pizzed off about all of this we might clean house and fire all of them and start over...

Apparently we cannot even count on the few that do understand the ramifications of this direction the government is taking this country, so lets flush them all down the drain...

I sure would not be offended...Even if it got rid of the people I do think are doing a good job, or at least trying to do that...

If I’m willing to say that publically, then there has to be others that think like I do...

[xzins]

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.

I do not see in the Constitution where a constitutional convention can be limited to one topic. "Call topic" is no place in the text. It even says "amendments" and if one were to propose more than one amendment there is nothing in the text that would prevent that.

Personally, I think a Constitutional Convention is a terrible idea, and none of the specifics are laid out EXCEPT to say that Congress is in charge. IOW, the current corrupt leaders are in charge of the process.

I think it's a terrible idea and an example of where Levin is mistaken.

[sickoflibs]

Another idea for the long dead pile.

[C210N]

I’d suggest doing some research on your own then...

I have, and know that there is a ton of precedent and practice. The nuts and bolts of how it works includes Congress counting the applications. At any one time there can be and have been multiple seperate calls, and Congress has to track and group them. That is why the states passing calls spell out specific language to make it easier for Congress to count. The closer the language between the states are, the more likely that congress WILL call the COS. The more apart the language, the more likely Congress will ignore the calls, because it can easily consider them for separate conventions.

[supercat]

I'm not sure how best to word them, but I think a few general legal principles need to be stated:

1. Presumptions of legitimacy are only applicable to acts done in good faith. An attempt to infringe someone's rights to the maximum allowable degree while remaining "legal" would represent a deliberate attempt to infringe their rights, and should thus be viewed as an action performed in bad faith;
2. Assessments of whether or not an action is performed in good faith require assessments of witness credibility, and are thus matters of fact rather than law;
3. A finding that an action was not so egregious as to merit a remedy does not imply a finding that the action was legitimate, and may not be used as justification for others to proceed likewise in good faith.
4. Someone who breaks into another person's dwelling without a good-faith belief in the legitimacy of his actions is a burglar or, if he confronts or intends to confront the occupant, a robber. If anyone gets killed during such action, the person who illegitimately broke in is a murderer. These definitions apply to government personnel just as well as anyone else, and citizens have a right and duty to defend themselves against burglars, robbers, and murderers.

An embezzler who limits his activities to amounts small enough to escape notice is a thief. Likewise government personnel who try to infringe on people's rights as much as they can. I would consider a broad recognition of that principle to be as important as anything else.

[xzins]

There is no place in the Constitution that requires a budget. I would be more in favor of first having a constitutionally required, honest budget required each year by a date certain. With it would be a requirement to report on adherence to the previous year’s budget down to the dollar, income verses expenditures.

We can look later at whether we want to require it be balanced. I prefer over-taxation to borrowing authority. Over-taxation will eventually hack people off.

[12th_Monkey]

I don’t like the fact the Western states and the North Eastern states drive the liberal agenda in DC.

[12th_Monkey]

Outstanding post.

[Jacquerie]

Okay. The treaty clauses have been tagged as problematic since 1787.

14th Amendment abuse knows no bounds.

As for Levin, I think you will appreciate his federal amendments.

A Summary of Mark Levin’s Proposed Amendments

[vg0va3]

“Congress will ignore the calls, because it can easily consider them for separate conventions.”

I believe Mark spoke about this and said that is when the states will sue if they fail to act.

[Jacquerie]

Thanks. I haven't seen the subject broached elsewhere. Few seem to notice that regardless of political party, this President of the United States, and his successors have/will have near dictatorial powers that contradict all constitutional, republican government.

Ping to Gondring.

[C210N]

[Carry_Okie]

Okay. The treaty clauses have been tagged as problematic since 1787.

They aren't on his list.

14th Amendment abuse knows no bounds.

Especially selective incorporation. Interestingly, it was a LONG dream of the Federalists, as is exemplified by the original Fourteenth Article of the BOR.

Re the list:

Amendment to establish congressional term limits. No more than twelve total years combined in house and senate.

I oppose term limits completely.

Amendment to repeal the 17th Amendment. Governors may fill vacancies to fill out remainder of terms. Upon two thirds vote, state legislatures may remove their senators.

Agreed.

Amendment to establish twelve year term limits on scotus. On three-fifths vote, and within twenty four months of a ruling, congress or the states may override scotus decisions. These overrides are not subject to judicial review.

No. I would prefer that the States could remove a SC justice by a majority of the legislatures and leave it at that.

Congress shall submit preliminary budget to president by first Monday in May for the next fiscal year. Should congress/president not adopt a budget by October 1st, the budget shall be set at 5% less than the last year’s budget. Outlays no greater than receipts and no greater than 17.5% of previous year’s GDP. Congress may suspend the 17.5% limit for one year on a roll call vote of 3/5 of members. National debt to require 3/5 roll call vote. Maximum limit of 15% income tax. Deadline for filing tax returns shall be the day before elections to federal office. Ban on tax of decedent’s estate.

Although I like the direction of this one, it is an absolute mess from the perspective of Constitutional law and enforcement. Can you imagine how often the SCOTUS would be dragged into budget battles? Nor do I think it necessary were Congress restrained to its Art. I Sec. 8 limits. Yet if they won't do that, what good is an amendment on the topic? For example, think of the mischief of "off budget" expenditures. This idea is poorly thought out. Levin should know better.

All federal departments expire unless individually reauthorized in stand-alone legislation every three years.

This one accomplishes nothing. I would rather see two thirds of the States being capable of dissolving congress for an election or nullifying a bill. It's much cleaner to enforce.

A joint committee of congress shall review and approve all executive branch regulations that exceed $100 million in economic burden. There is a six month window. If the committee does not approve within that time, the regulation dies.

"Burden" decided by whom, measured by whom?

Congressional power to regulate commerce does not extend to activity within a state, regardless of effect on interstate commerce. No entity may be compelled to participate in trade or commerce.

Again, this bandaid on the gaping wound that is enumerated powers is an enforcement nightmare.

Property owners shall be compensated for actual seizure or when a market value reduction of $10,000 or more occurs through regulation, interference, financial loss caused by any governmental entity.

Measured by whom? Are you allowing the Feds to enforce this power against State and local government? I'd prefer a percentage of the property value BTW.

State legislatures, on two-thirds vote, may amend the constitution.

What the hell was wrong with 3/4? There is no way I would go for this one because of the distribution of the sizes of States. Six year limit from first state to ratify. No state may rescind or ratify during the six year limit.

This is simply unclear.

All congressional bills shall be placed on the public record for a minimum of thirty days before final votes.

Including a declaration of war after a nuclear attack?

Two-thirds of congress may override. Three-fifths vote of state legislatures may nullify/repeal a federal statute or executive branch regulation that exceeds $100 million in economic burden. Nullification is not subject to any court review. States have two years to exercise this authority.

I disagree with the economic burden clause. If 3/5 the States want it gone, then IMO it's gone.

Photo ID required to register and vote. States will provide them at no cost if necessary. Excepting military personnel, there shall be no early voting more than thirty days prior to the date of the election. More restrictions to reduce third party registration and voting fraud.

I would like to see a clause requiring a minimum term of residency of two years. Else one votes in one's prior district.

All in all, it is a pretty shallow proposal in my opinion.

Another amendment I've advocated is to invest in the VP the "cedo" (in Latin it means "I sever," as cutting with a sword): the power to divide spending bills into pieces to force a vote on the pieces. Such would allow continuing resolutions to go through while making representatives put their names on more controversial elements. It makes a real office out of the VP too.

See? Something neither you nor Levin has even contemplated. He's not the legal genius people make him out to be.

[P-Marlowe]

Personally, I think a Constitutional Convention is a terrible idea, and none of the specifics are laid out EXCEPT to say that Congress is in charge. IOW, the current corrupt leaders are in charge of the process. I think it's a terrible idea and an example of where Levin is mistaken.

The problem is not the Constitution, it is the liberal interpretation of the Constitution that has led us down the road to tyranny. Nothing will prevent the courts from liberally interpreting any of Levin's proposed amendment so that they don't have any effect on the status quo.

On top of everything else, none of Levin's proposed amendments stand a snowball chance of being ratified. I like Levin, but usually when he goes on his rampage about a Constitutional Convention, I change the channel.

We don't have any Jeffersons or Madisons or Washingtons in power right now. Any amendments that would come out of a 21st century constitutional convention are likely to increase tyranny rather than eliminate it.

[Carry_Okie]

Any amendments that would come out of a 21st century constitutional convention are likely to increase tyranny rather than eliminate it.

I can think of a few simple ones that might fly. They would ultimately do a fair bit of good too. A milder variant of #1 & 5 in post 23 and the last item in post 36 would probably go through. At the very least, to ratify a treaty should require 2/3 of the FULL Senate. That's not a difficult change.

[Jacquerie]

Nothing will prevent the courts from liberally interpreting any of Levin's proposed amendment so that they don't have any effect on the status quo.

Have you read Levin's amendments? Nearly all are structural. Terms limits, repeal of the 17th, three-fourths of state legislatures can repeal federal statutes, regulations and overturn court decisions.

Where our nation is headed isn't confined to Freepers. State legislators know very well the heavy hand of Rome-on-the-Potomac, and that they don't have to put up with it.

The Framers did the heavy intellectual lifting, and the COS resolution being considered by more states is consistent with our founding philosophy.

Today, the FL Senate will vote on SM476, the COS application.

[Agamemnon]

I have only heard Levin talk about his amendments; I have not read his book.

"Levin's "Liberty Amendments" do not address those deficiencies. I expect him to fix it or I will continue to criticize his plan publicly. Yes, I have flagged him on those threads and FR mailed him on the topic, but I have not heard any change. I guess he's just too important to bother with peons like FReepers."

As poorly researched as you admit to being I wouldn't have given you the time of day either.

I'll bet you're also of the kind around here that just reads the thread title without reading the article before posting to it too.

Lazy scholarship.