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….
I think it's quite clear that we are definitely there right now...
Obergefell mightn’t even be the most ominous decision. The Housing decision gives the Federal government universal zoning power and the right and duty to transform ALL neighborhoods to be racially representative in the appropriate percentages to the population. The inferences are truly breathtaking. It is far more than just putting Cabrinigreens in the middle of all the middle and upper middle class neighborhoods.
States must interpose themselves between the People and the Federal government, Congress & SCOTUS have no say. They and the Executive have worked in combination to expand their power beyond their authority.
yes...absolutely...
I don’t see any reason why the States could not go nuclear, and dump the entire government, starting over from scratch and at the same time reconfirming the constitutional protections that have been usurped.
That would be my preferred route....lol...which would eliminate all the judicial precedents or what they call the body of law. However everything then would be subject to new interpretations and the danger is and is now, that the Constitutional language can be made to mean very different things.
I think to clarify original intent would be a worthy and effective change to the Constitution..
Pretty much like restating ones marriage vows.
I do not support “dumping the government”, I want only that the Federal government remain within the bounds of its authority.
OK...so the question still remains on the table:
How do you do that effectively??
Considering that they have never done that, nor has Congress ever used it's authority to accomplish this simple task.
In fact they have seeded their authority to the administrative branch at one time or another on nearly every authority they have, save for setting their own salaries and perks.
Only recently, they allowed themselves to let the administration set their perks as well.
For example, how do you go back to the 1930s and set aside the Hugo Black decision, which along with it's body of law, is used today to create a wall of separation between church and state.
That decision by the way was made for anti-Semitic reasoning.
Thanks for asking.
Thanks.....I missed the post during my “speed read”....:-)
Congress is complicit in what is now established oligarchical rule. The Convention is only useful if the several States can get off their butts and call it in the next few months and if it can put amendments out for ratification and get them ratified before, say, next July. The consolidation of Government by Executive is rapidly accelerating and will reach a point, probably next summer, where the transformation is operationally complete and the direct coercion will begin.
The CC is working it’s way through various state legislatures as we speak, but unfortunately some states have balked on the idea..
Only recently, Louisiana which had issues with it, passed it after the recent SCOTUS decisions...
Last I heard, Texas had issues with it, and others..The limited scope of action has been a amendment for a balanced budget.
It’s wait and see thing, but few people in the public are aware of it or they don’t seem to care.
But we need a couple more....The more the merrier.
http://www.sweetliberty.org/standing_calls.htm
Thanks for the heads up.
Asked and answered.
Here's one example taken from page 29:
§ 3.3. Why the Founders Adopted the Proposal Convention in Article V.
An early draft of the Constitution permitted amendments to be proposed and adopted only by interstate convention. Then the Framers added provisions allowing Congress to propose amendments and requiring state ratification. Congress received the power to propose because the Framers believed that Congress’s position would enable it readily to see defects in the system.
However, some delegates—notably George Mason of Virginia—pointed out that Congress might become abusive or exceed its powers. It might therefore refuse to adopt a necessary or desirable amendment, particularly one designed to curb its own authority. Accordingly, the Framers added the convention for proposing amendments as a vehicle for the states to present corrective amendments for ratification while bypassing Congress.40
The superscript "40" above is an important element of the manuscript because it grounds the sources of the summary above to historical records, case law or other publications that are also sourced. Therefore, the manuscript becomes a document that grounds discussions in historical precedent.
After skimming over the document I am not seeing sentiment wildly different than my own but the legwork for referencing and sourcing saves countless hours of research. Also the organization and 'mind's eye' of the author makes it valuable to have as a reference.
I am not surprised at the focus on a single topic convention but I am not persuaded to that which the COS group has stipulated to be curbing the overreach and jurisdiction of federal government power even though it seems logical, necessary and 'natural' that this topic should be the order of the day. I think we need to peel the onion layers back a little more to the crux issue which is States Rights and Control of States Rights. The difference in framing may be subtle but of enormous consequence.
We have to use psychology here. Framing the single topic as curbing federal overreach, jurisdiction we 'invite' the neighborhood and the legal community of courts to participate in an unremitting debate that saps energy of the originators and risks a 'fizzling out'. Changing the terms of the single topic to States Rights and Control of States Rights we focus on amending the Constitution in a way that we retain title to the amendment.
In lay terms, an example that most can understand is one where a Peeping Tom neighbor is constructing a monstrous elevation addition to his property that is completely out of character with the original neighborhood and that has structures that look right into the rooms of our homes invading our privacy forcing us to shutter our windows or place curtains all of which rob us of much needed sunlight.
The first reaction would be for neighbors to take it up with City Hall and petition for a work stoppage and redesign of the Peeping Tom home but the building codes may very well be ambiguous as to a legal basis to stop the Peeping Tom neighbor not to mention that neighbors (think MSM) in other enclaves might possibly skew council discussion that such blanket interpretations of codes would lead to whatever monsters in the attic they saw fit to dream up. In any event prepare for a long drawn out a fight over public opinion and a litigating war of attrition.
A better approach would be for a property owner to fall back on existing code that allows for a property owner to plant a hedge of Leyland Cypress trees (they grow fast and tall) to block the Peeping Tom from his privacy encroachment. Now the property owner is solving his problem on his turf in a way that he controls. That's the way we need to be ... in the beginning. We must control the argument from the vantage point that "it's not about them, it's about us and our comfort level". The neighborhood enclaves (MSM, public) will not object to our approach and the onus is put on the Peeping Tom (Federal Government) to figure a legal way around our hedge which he won't be able to do as long as we are in control.
These matters of how we frame the issue are important. Professor Natelson and others of the COS Project need only a little adjustment of view and the COS template will be much stronger tactically. Battles fought defensively rather than offensively sway public opinion greater to support a cause.
The second point where we must use psychology is to limit the single topic to one and only one amendment at the beginning. This is a single shot opportunity. We miss and we lose the war. We hit and we get to shoot again. The one amendment can have several sections closely related to each other. For example, related sections of "term limits, state/voter recall, state quash" would be related to States Rights and Control of States Rights whereas amendments to repeal the 17th, to balance the budget, to curb abuses of the Commerce Clause would be waiting in the wings, why?
This is a 'new thing'. If we hit the target and life is better as a result, then we are trusted to bring in other amendments. We build trust with one great and symbolic amendment, then we have a track record that gives us license to bring in more amendments.
Will an amendment focused on States Rights and Control of States Rights weaken the federal government? Yes, it will. With the proposal of this one amendment I will point my finger direct at the 'Washington Cartel' and tell them straight to their faces that the Progressive Era in the history of the United States is on its way out; it's going to be over. The question is not what makes the Federal Government stronger, the question is what makes the United States of America stronger.
He will not refute your post 145, I’m pretty sure of that.
Saying that Congress MUST call a convention upon application of 34 states is a great point that is well-supported. But ‘saying’ it does not make it so.
As a lawyer he is merely drawing attention to the fact that Congress may object that the core language of the applications is not uniform. ‘Saying’ that Congress cannot do that does not make it so. Every good fighter does not go into the ring expecting that his opponent adversary will hit above the belt at all times. Every good lawyer does not prepare a brief that expects the arguments of the adversary to be truthful and candid.
What you have to show (which you can’t; sorry) is that Congress won’t be able to throw a monkey wrench into the fight without matters ending up in Court.
Say Natelson agrees with you and applications on whatever are filed by 34 states. Suppose Congress says these are not all on the same subject (that’s very probable you know). Regardless of what you ‘say’ or what you point out that the Constitution says, just think now what? Congress just went against you and declared no convention will be called because the amendments are not uniform.
What are you going to do about it? You going to go shoot at them?
No, you are going to watch courts get involved and that means serious time gets wasted.
What did Obama do when the House would not vote for the Gang of 8 immigration reform? He went around them with Executive Amnesty.
But but but Obama can’t do that! The Constitution says yada yada! Well, he just did it. What you going to do about it? So the States took him to court and got a temporary stop on him. It’s now in court.
That’s where you’ll end up; in court.
Natelson’s plan is to sail through court by eliminating any points of objection or debate. That’s standard lawyering. He’s right. Where’s he wrong is in framing the issue from the federal side of the coin rather than the state side of the same coin.
What should happen is at least 34 states should convene NOW, without waiting forever for a corrupt congress that will never call them to it. Let the DC denizens and media howl. Like good statists, they will all denounce the exercise of sovereignty.
The right to alter our government long precedes Article V.
There is little time.
“No federal court or Scotus has legitimate purview over either a state or congressionally initiated Article V process.”
Ok so what?
They go against your statement above, what you going to do? You going to shoot them?
"This is just a meeting, not a valid Convention of the States, because we didn't call it. It's illegitimate. Any amendment proposals generated by this meeting will be invalid and ignored by Congress. We will refuse to send these invalid amendment proposals to the states for ratification, and if states attempt to ratify these invalid amendment proposals, we will refuse to accept the letters of ratification. Proper constitutional procedure has not been followed."
Hostage, you're the lawyer. Do I have this right?
Not quite. Congress could be taken to court and force to call the convention if the court’s interpretation went against them, but then they could appeal, Then is gets tied up for a long time. Maybe the Feds would want it that way.
It would boil down to public sentiment. If there were not a single topic, rather a plethora of amendments, especially from the left that even though having no chance of progressing would create a negative reaction via media reports so that the public would develop a negative view of such a convention ***overall***, then the Article V movement loses.
The public would be left with a memory of chaos and some really crazy amendments.
This is why it’s important to forge ahead with a single topic, one amendment only, convention with the pre-selected amendment making lots of sense and resonating greatly with public opinion.
The "Phyllis" in the conversation was, of course, Schlafly.
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