Do We the People Need an Article V Convention of the States in the Aftermath of <i>Obergefell</i>?

self; | July 1, 2015 | Jean F. Drew

[betty boop]

Do We the People Need an Article V Convention of the States in the Aftermath of Obergefell?

The short answer to the title question would seem to be: Very likely YES. And that for a number of reasons.

First, Congress has been utterly derelict in executing its constitutional powers designed to constrain excesses emanating from the Supreme Court. There are three constitutional legislative “checks” on SCOTUS — or any other federal court. Other than the Article III Supreme Court, Congress is the creator of all the other federal courts — and all are firmly within its lawful legislative power in certain vital ways — most importantly including the Supreme Court itself.

(1) The first is the power of Impeachment. Supreme Court justices have lifetime appointments, subject only to “good behavior.” If a justice behaves badly, he or she should be impeached. Arguably, several sitting justices have behaved rather badly in the Obergefell case. Two justices had been asked, in an amicus curie brief, to recuse themselves from this case on grounds that they had a preexisting personal stake in its outcome: Both Justice Ginsberg and Justice Sotomayor had already conducted several gay marriages. Both refused.

We won't even get into the matter of Justice Kennedy, who evidently considers himself as the "swing vote" on the current Court. In such way he manages to elevate himself above the other oligarchs on this Court. So we not only have the horror of a "tyranny by oligarchy" of nine black-robed unelected and unaccountable judges who will tell us what our Constitution means by simple majority vote; but HE is the single vote that will carry the day on any given question. Under the circumstances, he is not just one among the other oligarchs; he is the sole archon who determines what our constitutional order actually IS.

(2) The second is the constitutional power of Congress (Article III, Section 2) to “regulate” the Supreme Court. Bear in mind such regulation cannot reverse any Supreme Court decision already made. However, though

A legislature, without exceeding its province, cannot reverse a [SCOTUS or any other federal court] determination once made in a particular case; … it may prescribe a new rule for future cases. — Alexander Hamilton, Federalist No. 81. Emphasis added.

Which entails that Obergefell is indeed now the law of the land. But Obergefell is just the opening salvo of much more to come respecting the issue of marriage. And so much more is at stake, preeminently religious liberty.

Congress — that is to say, the House of Representatives — has the constitutional power to instruct the Court, going forward, that it has no authority to adjudicate issues regarding marriage, perhaps further stating that the original design of the Constitution contemplated that marriage issues lay firmly within the jurisdiction of the several States — not least because the ratifying States at no time contemplated, nor conceded the regulation of marriage to the national government. The regulation of marriage was a retained power, not a delegated one. Congress could simply instruct SCOTUS that it has no jurisdiction in this matter. On my understanding, this could be done on the basis of a simple majority vote, one that is constitutionally immune from presidential veto.

(3) The third is Congress’s power of the purse. Congress controls the salaries paid to federal officials, elected and appointed. In the case of the Supreme Court, Congress cannot cut their pay, certainly not on an ad hominum basis, nor abolish it altogether. But unlike pay for the President, which cannot be either reduced or increased in any way during any chief executive’s tenure in office (and thanks to Amendment XXVII, the same applies to Congress), though Congress is constitutionally forbidden from reducing compensation to members of the federal judiciary, it can definitely deny any future increase in their pay. The saliency here derives from the fact that federal judges and Supreme Court justices have lifetime appointments (subject only to good behavior). The rising cost of living inevitably will take its toll on their salaries. To Ruth Bader Ginsberg, at age 82, this may not be much of a concern. She’ll be retiring sooner or later; we just don’t know exactly when or the cause of her retirement at this point. But for the youngsters on the Court — Sotomayor and Kagan, for example — such a pay freeze would take its toll over time. Plus meanwhile, you’d have to freeze the pay of every other federal and Supreme Court justice commensurately in order to strike out at the miscreants. It wouldn’t surprise me to see a good deal of pushback from the ranks of the judiciary at all levels for judicial decisions made (on the basis of ideology, not constitutional construction) that imperil their own future financial well-being.

Need I say that Congress has done none of these things? Even though their own constitutional authority and powers are tacitly sacrificed, surrendered, on the alter of judicial activism by their lack of action with respect to the exercise of the duties plainly put on them by the language of the Constitution itself?

Given that Congress is evidently supine in the face of egregious attacks on its own institutional privileges and constitutional authority, and is so willing to “compromise” with the Spirit of the Age; to say, “hey, it’s the law, so let’s just move on,” I think it’s fair to say that these most direct representatives of We the People are not doing their job. Since the only way we have to “fire” such folks is through the electoral process; and via that process, they manage to get reelected almost always anyway; and since these agents of the sovereignty of the People are doing such an execrable job in standing up for the liberty of the People — which is the whole point of the Constitution — We the People have to take matters into our own hands, via Article V.

The Article V Convention of the States approach has never been taken before in American history. All the Amendments we have — all 27 of them — were proposed, deliberated, and produced by Congress, and then submitted to the several states for ratification.

The “Convention of the States” approach to Article V constitutional amendment has no precedent in American history. So I ask, what could go wrong with that, when it is finally tried?

Given that the firmly ensconsed “powers that be” can be expected to be highly reluctant to having their powers curtailed, they — that is, Congress, the mediating body of whichever method of Amendment is proposed — might think they have some kind of discretion respecting what sorts of amendments can be entertained. I was very grateful to learn, from Federalist No. 85 (Hamilton) that, respecting the constitutional amendment process,

Every Constitution for the United States must inevitably consist of a great variety of particulars in which [the then] thirteen independent States are to be accommodated in their interests or opinions of interest…. [I]t has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they once possessed…. I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers. [Emphasis added.]

Which is to say, one cannot amend the original Constitution in such a way as to increase the original powers of the national government. Since the original powers of the federal Constitution did not include the surrender of the power of the several States to federal adjudication of marriage issues, the Obergefell decision ought to be regarded as a nullity right out of the gate.

Obviously, that has not happened. At least, not yet.

But if our “servants,” Congress, will not act, I guess it’s up to We the People to act — the People being the lawful principals here, in recognition of the constitutional fact that Congress is merely their agent carrying out a very narrow range of delegated powers, restricted to the warrants granted in Article I, section 8; in recognition that the defense of individual liberty of the citizens of the United States is the “prime directive” of all just government. There are two ways they can do that: Constitutional amendment or outright civil war.

Since we do not have any precedent for a Constitutional Convention of the States under Article V, I have no clue how that might turn out, or what obstructions Congress itself might raise against it. If the articles contained in the Applications of the 67 States have the effect of limiting any existing powers as they are now exerted, perhaps there is no friend to be found in the authorizing body, Congress.

But then I was very happy to learn that (at least this was the original understanding and intent of the Framers), if 67 States make such Application, Congress MUST comply. There is no lawful way for it to do otherwise: It MUST establish a Convention of the States.

Actually passing an Amendment is a bit more tricky. You only need 67 States to advance it; but you need 75 States to ratify it. Some States — my own included — are wallowing in such thoroughgoing political corruption that you can never depend on them to “do the right thing.”

Another relevant issue is, one cannot convene a “generic” Convention of the States: It must declare what are the specific objects it has in view that need amending.

For those of us still agonizing over the Obergefell decision, a constitutional amendment defining marriage exclusively as the union of a man and a woman, having full effect in law, will be paramount.

However, in the States’ bills of Application, I would strongly urge the desperate need for another Amendment besides: Repeal of the 17th Amendment.

The 17th Amendment completely changed the very architecture of the original Constitutional framework, right down to the bedrock of the separation and balance of powers in our political system. It one swell foop, it deprived States per se of representation in the national legislature. Thus the natural defenders of the Tenth Amendment were expelled, deprived of representation in that body.

We do indeed “live in interesting times.” All I can recommend is to understand the nature of the political order into which you were born, which is the best specification for the flourishing of human liberty in the history of the world; stand up for what you believe; pray constantly; and leave the rest up to our Lord….

[Jacquerie]

Your response is no worse than the others.

[M Kehoe]

Good afternoon.

It’s not him who votes but him who counts the votes- Joe Stalin..

I maybe missing something here?

5.56mm

[hosepipe]

I know... the slippery slope is a razor blade dividing morality from moderation...
The culture is infected with democracy.. i.e. mob rule..

The filthy concept of democracy(central gov’t) is contagious..

---

Democracy is the road to socialism. -Karl Marx

Democracy is indispensable to socialism.
The goal of socialism is communism. -V.I. Lenin

The meaning of peace is the absence of opposition to socialism .-Karl Marx

[hosepipe]

Voter Fraud...

[Political Junkie Too]

If I wanted to be a Congress of maximum chaos, I would do the following:

1. Make each proposed amendment follow the ratifying convention method.
2. Organize in each state to demand separate conventions for each amendment , on the grounds that each deserves its own attention and focus with their dedicated experts.
3. Demand that each ratifying convent be held simultaneously, so as to divide the states' attention and expertise. This way, influential state politicians cannot participate in the ratification of all the amendments.

When people balk and push back, as expected, tie it up in the courts for as long as possible. Make people disgusted with the politics of it. Use that disgust to push for rejecting all the amendments. It sounds like a plan that McConnell is an expert at coordinating.

- PJ

[Publius]

#1 and #2 would be legal. #3 would not.

[Purdue77]

"Go back further and you'll find that the Roman Republic amended itself often enough to last 450 years. It did so not by declaring rights on paper, but rather by setting up institutions whose natural, structural interests tended to secure the liberty of the people"

I do hope that you know that Roman Republic devolved into the Roman Empire at the end of that 450 years where the rights of the people flowed from the Emperor. Who is to say that we aren't already at that break point.

[Jacquerie]

You read the first para of my post. Congrats.

[xzins]

the rights of the people flowed from the Emperor

Exactly. Is Barry Hussein Palpatine that restored emperor, or do we continue the search: "The inhabitants of the earth whose names have not been written in the book of life from the creation of the world will be astonished when they see the beast, because it once was, now is not, and yet will come."?

[Phlyer]

What a bogus argument!!

The Constitution as it is written includes approved amendments. That's obvious, and you know it, and so you use that fatuous argument as a basis for other fatuous arguments.

I'm not against amending the Constitution through the means established in it and if a Convention of the States duly amended it I would abide by that decision. I am against the risk of an out-of-control Convention being that means. And the specific things that are being advocated as amendments via the Convention route are not needed if what is already written is enforced.

The problem that you seem bound to ignore is that our basic national disgrace is that what is written is ignored by those in power. Writing down more ignorable words does not change that. On the other hand, if we actually started abiding by what is written, then changing what is written would offer potential benefits to balance against the risks.

[nathanbedford]

To respond to arguments that have been repeated time and again I need by now only to look into my remote hard drive and select the reply that fits. I have done so in reply to your criticisms. I would only add to it an ending remark, after the concluding remark, as follows: I simply cannot accept an argument of futility which says that if we keep repeating failure we will get success.

If the “old constitution” isn’t being followed, the “new constitution” won’t be followed either ... :-) ...

The "old constitution" was followed for many decades and was only seriously altered 80 years later as a result of the Civil War. Thereafter the amended "old constitution" was followed well into the 20th century even after Wilson until the New Deal. So the old constitution gave us quite a long stretch of service.

We do not know whether the "new constitution" will be followed but we certainly have no historical warrant to foreclose the probability that it will in fact be followed for decades, perhaps even long enough to save the Republic.

Much of what comes out of the Article V process of course depends on the kind of amendments which might be ratified. As one FReeper has already posted on this thread, it will be difficult to fail to follow an amendment which prescribes term limits. Other amendments, carefully drafted, would be equally difficult to evade. In any event, careful drafting will modify the old constitution and bring it back to its original conception and should not therefore simply be dismissed as a "new" Constitution but should be considered the restoration of the old.

Most of the advocates of this process support "process" amendments which change the way we are governed. I for one like an amendment which says that bureaucratic regulations which are not confirmed by a majority vote of both houses of Congress within a specified time limit are automatically repealed. We might not like the results we get in Congress when it comes time to ratify these regulations but at least the new process brings the bureaucracy under scrutiny and democratizes what has become a tyrannical combination in the executive of lawmaking, adjudication, and punishment. It would also return us to a separation of powers in this area.

My point is that process amendments make it more difficult for the establishment powers to play their games.

Finally, I simply cannot accept an argument of despair which says since it might not work we should not bother to try.

[betty boop]

What Scotus delivered last week to our former republic was despotism. Like Russian Czars, Turkish Sultans who issued decrees backed with bayonets, the American republic has been transformed into a top-down empire in which the once sovereign states exist to carry out their master's commands.

Jacquerie, this was foreseen by "Brutus," in Essay XI (1788). Brutus, an anonymous Anti-Federalist, was concerned about the federal judicial power being proposed in the not-yet-ratified Constitution, worrying about its impact on State executive, legislative and judicial authorities. It seems Brutus was amazingly prophetic:

This article [III] vests the courts with authority to give the constitution a legal construction, or to explain it according to the rules laid down for construing a law.—These rules give a certain degree of latitude of explanation. According to this mode of construction, the courts are to give such meaning to the construction as comports best with the common, and generally received acceptation of the words in which it is expressed, regarding their ordinary and popular use.... Where words are dubious, they will be explained by the context....

The judicial power will operate to affect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution:—I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted....

Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors; the same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is highly probable that the emolument of the judges will be increased, with the increase of the business they will have to transact and its importance. From these considerations the judges will be interested to extend the powers of the courts, and to construe the constitution as much as possible, in such a way as to favor it; and that they will do it, appears probable.

...Because they will have precedent to plead, to justify them in it. It is well known, that the courts in England, have by their own authority, extended their jurisdiction far beyond the limits set them in their original institution, and by the laws of the land....

When the courts will have [the British] precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? and they are authorized to construe its meaning, and are not under any control?

This power in the judicial, will enable them to mold the government, into almost any shape they please.... (The U.S. Constitution: A Reader, Hillsdale College Press, 2012, p. 374–377). Emphasis added.

The enormities perpetrated by SCOTUS last week appear to fully justify Brutus' worries.

Thank you so very much, Jacquerie, for your outstanding essay/post.

[caww]

Very interesting read....and apparent we have seen this result now with Scotus and this administration as well.

[Jacquerie]

If last week was predicted by Brutus, why did it take 226 years?

[hosepipe]

And who dequised as a mild mannered cuban from Hispanic-ville..
fights a never ending battle for truth, justice and the american way..
( Super - Cruz )

[caww]

.....”If last week was predicted by Brutus, why did it take 226 years?”.....

Infiltration was at one time fought against...successfully. Today anything goes. The ground has been softened so much in the minds and hearts of people they no longer can tell the difference between right and wrong...and most don't care in society today...... If you can alter the beliefs of a society to "something else" it will surely fill that void.

[betty boop]

Thank you so much, Publius! Let's see if my recalcitrant little brain has finally grasped what Article V says, and its implications.

A Convention of the States... is part of the Proposal function.

The COS is not necessarily a physical assembly of persons at a particular geographic location. Rather the COS is, effectively, the aggregation of the Applications of the legislatures of the several states calling for an amendment or amendments to the Constitution. As a practical matter, all such State Applications would have to be in substantial agreement as to the need for such particular amendment(s), for the following reason:

Congress is what does the aggregating: Thus, as a practical matter, the language of State Applications must be in substantial agreement in order that any given State's Application can reasonably be "aggregated" with other States' Applications respecting the same matter. When the (current) magic number of 34 State Applications — or two-thirds of the States — is achieved, Congress MUST call for a Convention for Proposing Amendments, and set the time and date for same.

The above details the Amendments Convention Method of proposing amendments to the Constitution.

You note that the States may request a single-subject convention or a general convention open to all subjects. Yet an expert source you referred me to, Robert G. Natelson, seems to suggest a request for a general convention might not be taken seriously by Congress in today's political climate.

He points out that, with the exception of the Bill of Rights and Amendment XXI (repealing prohibition), all Amendments to the Constitution first arose in Congress, not in State Conventions, and had the effect of constraining the powers of the States. The two named exceptions were explicit reductions and constraints on the powers of Congress; i.e., on the federal government itself. They originated, not in Congress, but by the Amendments Convention Method.

Anyhoot, the convention for proposing amendments is "basically a drafting committee or task force, convened to reduce one or more general ideas to specific language." It is an interstate collaboration.

Once this has been done, it's time for the Ratification function. Congress then has the exclusive authority (the Disposal function) to specify which of two ratification methods will be used: Either by vote of State legislatures directly, or by State Conventions, whose delegates are appointed by and answerable to their respective State legislature.

Thus to the Ratification process. It requires the votes of three-fourths of the States — now 38 States — by whichever method Congress has directed, to pass a constitutional amendment. But once that number has been achieved, the amendment MUST be put into effect. It becomes part of the Constitution with full effect as the law of the land.

I hope my understanding, as outlined above, is correct. Please, Publius, do feel free to correct me if it's not.

Thank you ever so much, Publius, for the outstanding contributions you have made to FR over many, many years! And for helping me with the present matter.

[Publius]

The COS is not necessarily a physical assembly of persons at a particular geographic location.

Yes, it is. That's exactly what it is. Beyond that, your post is pretty much on target.

For over 200 years, Congress has held to both a Single Subject Standard and a Contemporaneousness Standard. Are either mentioned in the Constitution? No. Has Congress ever legislated either of them into law? No, although the 1973 ABA Report chides Congress on using unwritten standards rather than writing them into law. The two standards have over 200 years of precedent, however. If you ask any congressman or senator about either standard, he will explain the precedent to you and how its roots are in contract law. If you ask most federal judges, they will say the same. There is a small portion of the legal profession that believes that the two standards are unconstitutional, that Congress should have called a convention in 1895 when the two thirds level was reached for any number of aggregated subjects, and that all conventions are general in nature. That's a minority position, however.

Has anyone tried to go to federal court to invoke the minority position? Yes. Bill Walker, a truck driver from Auburn (WA) filed in 2000 asking the federal courts to order Congress to call a convention dedicated to all subjects that had been applied for since 1789. I spent two years of my life editing Walker's brief, which was a graduate level course on Article V. What it was not was "brief." It took two whole loose-leaf binders. The court refused to hear Walker's case, and all higher courts also refused to hear it. He lacked standing, being an individual, not a state. Did Walker ask any state attorney general to file his case? Yes, and not one wanted a general convention under Walker's terms.

The late John Armour, a constitutional lawyer from Asheville (NC), was known here as "Congressman Billybob." He looked at Walker's brief, which was available at a website, and explained to me that the judge had probably never even read it, and he explained the assumptions that Walker had gotten wrong.

As Congress sees it, applications from the states must be for the same subject and contemporaneous, although Congress has never legislated a time frame. Congress has delegated the duty of building the spreadsheet to the Archivist of the United States. He maintains the spreadsheet by row (state) and column (subject). When the two thirds level is reached, the Archivist sends a memo to both House and Senate leadership telling them need to "call" a convention by setting the time, place and subject matter that is extracted form the applications from the states. At that point Congress steps out of the picture until the convention's work is done, and zero, one, or more amendments are reported to Congress for Disposal.

[Publius]

Correction. In the last paragraph, I should have said "When the two thirds level is reached in a column..."

[Publius]

Whoops! Just caught this one.

Either by vote of State legislatures directly, or by State Conventions, whose delegates are appointed by and answerable to their respective State legislature.

A state legislature may determine how a state ratifying convention is chosen, but the last time around (1933), the state legislatures had the memberships of their state ratifying conventions chosen by the people in special elections.