Posted on 07/01/2015 3:56:31 PM PDT by 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….
Why did it take 226 years — to see that Brutus' "prophecy" came into full effect last week, in such a way that rational people who love their country could (finally) notice and credit Brutus' just concerns?
Great question, Jacquerie. I don't know how to answer it.
But I do suspect that part of the problem can be explained by (1) a general ignorance of the concept of popular sovereignty, so clearly presented in the Preamble to the U.S. Constitution. (2) The general propensity of most Americans to "trust" their government. (3) The distractions of quotidian life, whereby people are more concerned about things that affect them most directly in daily existence, than by "abstractions" that are irrelevant to such immediate concerns.
Today, your average American is very probably unaware of the central fact of the U.S. Constitution: That the people — We the People, as the Preamable puts it — constitute the sovereign power in this country. There is no higher authority in our constitutional system than the People. And our constitutional system is predicated on "the consent of the governed."
The People of the Preamble are "sovereign," in the sense that there is no higher authority, other than God Himself, to whose rule they are subject, at whose "throne" they must kneel.
The Constitution is a compact, or contract, between the People and the government which they establish, for the "benefit of ourselves and our posterity," who have delegated certain limited, enumerated powers to that government, in the relation of a principal giving instructions to his agent.
In such a relation, it is the positive duty of the principal to bring his agent to heel, if that agent is exceeding his mandate, or is performing his duties poorly.
Thank God for Article V!!! The Framers expressly intended it as a means for the People to bring their government to heel, to correct, check, reverse any transgression it may commit against the Will of the People, who above all intended to create a system of government that mandates its agent to be exclusively concerned with the preservation and maintenance of the Liberties of its principal, to protect the People from usurpations of its sovereign power by unfaithful agents.
In short, the Framers really did expect, require, the active participation of the People to ensure that the constitutional charter would not be subverted against their liberty interests, and their desire for equal justice under law.
Few people today, or perhaps ever in our history, have the historical memory of a Brutus. He evidently knew that the glorious Republic of Athens imploded, due to systemic corruption; and thus became a slave of Macedon. He knew that the Roman Republic destroyed itself due to unrestrained imperial ambition, extending Roman territory to such an extent that it became practically ungovernable. (Not to mention the famous corruptions of specific emperors.)
He was also apparently a keen student of human nature and human psychology. Thus I gather, he was not unfamiliar with Plato and Aristotle....
I suspect most Americans don't much care about such concerns. As already mentioned, they just expect their government to do the right thing, and never bother to check whether this is actually the case.
Seems to me like it's time, even past time, for We the People to step up to the plate and restore the constitutional order of our beloved country. It's time for an Article V Convention of the States.
Failing the restoration of constitutional order, the only thing we can expect is that a call to arms, is the only other solution.
Some people actually look forward to this sort of denouement. I am not one of them. But if we are left with this as a last resort, then God's Will be done.
I pray that He will continue to bless the people of the United States of America.
Thanks, Jacquerie, ever so much for writing.
Oh my, even better news!!!
I was wondering about that point, which wonderment boils down to: What is the practical difference between ratification by a legislature, or by a "creature" of a legislature, that is answerable to its creator?
Delegates "chosen by the people in special elections" would obviate this difficulty.
Thank you so very much, Publius!
Obviously, Congress has no interest in facilitating any proposal that would undercut what it views as its own institutional interests. We can expect that there will be immense resistance from that quarter, that a Convention of the States proposing amendments to the Constitution can be expected to face an uphill battle.
FWIW, I think Bill Walker was right, that there should be no time limit, for the purposes of "aggregation," for State Applications.
Thanks again, Publius!
<>Thanks, Jacquerie, ever so much for writing.<>
And the same back to you.
The very limited role in the convention process allotted to congress by the framers of the constitution arose from their experience. An extra-congressional process would provide a safeguard against an abusive or recalcitrant national legislature. Debate records from the federal and state ratifying conventions make it plain that Article V is designed in part for the states to circumvent congress.
It is outright absurd to say the framers intended to entrust congress with authority over the very institution created specifically to bypass it! As Alexander Hamilton succinctly stated, “the words of this article are peremptory. The congress shall call a convention. There is no discretion.
The structure of the federal government created by the constitution also supports the view that congress’ role in the amendment process is severely limited. The convention process is created by Article V; it is not a component of any of the three branches of government created by the first three articles. The convention derives its power from a separate and independent grant of authority in the constitution itself. It cannot be made subservient to any branch of the government. Further, the sole purpose of the convention is to propose changes in the pre-existing system of government. This renders the convention distinct from, if not superior to, the three branches of government.
Whatever the application counting role of congress, congress has neither the power to limit the subject matter of a convention for proposing amendments, nor the right to limit the convention to a narrow issue. The federal convention specifically deleted reference to a single amendment on a single issue. This deliberate change is reflected in Article V and must be given substance. Congress/courts have no authority to alter or limit that power.
Nor does the plain language of Article V empower congress/courts to limit the form of state applications by topic or time limit. The whole reason for the convention method was to give the states the ability to circumvent a recalcitrant or unresponsive congress. Any construction of Article V that gives congress the ability to limit or defeat the application process is plainly incorrect. The only conclusion that can be drawn from the history of Article V is that congress has no authority to involve itself in any way in the operation of a convention for proposing amendments once it has been called.
Matters such as where the convention will meet, who shall chair it, how voting by delegates will be conducted, and what matters the convention will consider are all beyond the authority of congress.
As Alexander Hamilton wrote in Federalist 85, once congress has called a convention it has no further role until the convention has finished its work and proposed one or more amendments.
I suggest printing off both the ALEC Document by Natelson that was in my link and also the ABA Report that was my second link. Both documents should be three-hole punched and placed in a binder. There will come a time when people and politicians will be quoting chapter and verse from both documents.
The two documents have very different, competing and mutually exclusive views of how an Amendments Convention would be run and how delegates would be chosen. In reading the two documents, you could build a matrix of the differences between them.
Natelson did not take the ABA Report into his research, and I say this because there is no mention of it in his endnotes. It's understandable because the ABA Report is not available on the Net. Bill Walker got it in hard copy from the ABA, laboriously keyed it into his brief, and I had it only because of the editing work I did for Walker. Natelson probably doesn't know it exists. It exists on FR only because I saved it from my effort with Bill.
The key to the differences lies in who is the controlling authority for an Amendments Convention. ALEC says it's the states, as does Mark Levin and the entire COS movement. The ABA says it's Congress.
When Congress calls an Amendments Convention, 535 copies of the ABA Report will come out of dusty filing cabinets in a warehouse that looks like the one where the government stored the Ark of the Covenant in "Raiders of the Lost Ark." Various congressmen and senators will introduce bills giving Congress control over who will be the delegates to the convention and how the convention will operate. The states will fight back. This will be the battle, not whether Congress will actually call a convention or not.
Love that guy!
Prof Natelson is a very gracious man, and I'm sure he would kindly receive a copy of the work you mention. Over the years, I've asked him an email question or two, and he has always graciously answered. I'm really amazed, actually. He seems a very kind man. I wouldn't want to wear it out, but just wanted to report that he is accessible.
you may be disappointed in the book a bit because he basically says that a political solution is next to impossible. That civil disobedience is the most viable option. I see that as becoming a third world country but in many ways we already are.
Thanks, Jacquerie, for this informative analysis!
Happy Independence Day!
+1.
This conflict is to be expected. I have to read the ABA Report — on a quick scan, I see it is extraordinarily well-detailed. Thanks again for the link to it.
And thank you so very much for writing, Publius!
Happy Independence Day!
Do you have an e-mail address for Natelson?
Check your freepmail
It also invalidated the 1973 ABA report that I have cited in the past, so I will no longer be citing that in these threads.
State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters
Your comment is a good representation of the contrary opinion expressed today, but I think you are relying on the Congress and SCOTUS to do what they are tasked to do and have failed to do for as long as I can remember or know, with only one or two exceptions for the last 90 or so years..
The CC is now necessary because Congress and Scotus as well as the Federal Appeals system require further direction (regulation) by the Constitution in order to correct decades of intentional misinterpretation and bad law used as precedent to judge todays bad law..
All this is in fact the purview of Congress but they have failed to act on it, and will continue to fail to act.
As far as I am concerned, we have only this one option remaining, and if we don't use it, then society will continue to break down, replacing our republican form of government with a top down command and control socialist system that will continue to degrade the Constitutional protections.
After that, it will be chaos, and it will happen like a snowball rolling down a mountain.
Is that intentional sarcasm or just a typo.
Thank you for the ping.
That is a 350 page pdf file with a lot of legalese.
I’m afraid that I will need for someone to digest it
and provide a reader’s digest version.
That Convention can only be useful if state legislatures get to it and call it THIS YEAR. Next year will be too late. The Central government will have the means and the inclination to stop it forcefully or to simply ignore it. This supreme court session has essentially struck down the Constitution. Everything is working hard to some sort of climax soon, probably next summer. Anything we do to stop the Total State has to be done this year. The next election will be for who we prefer for Dictator because Congress and the Court have transferred almost all power to the Executive. Once the transfer is complete it cannot be recovered peacefully.
We do in fact have lawyers at this site who might be able to summarize it. I find the best way to absorb it is to take it slowly over a period of time. Don’t rush it.
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