Posted on 07/09/2005 5:47:02 PM PDT by Travis McGee
U.S. Constitution, Article V
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'm currently doing some research about Article V of the Constitution, because a runaway "hijacked" Constitutional Convention figures in the plot of the novel I'm currently writing.
Reading the various contemporary commentaries on the original Constitutional Convention in Philadelphia in 1787, one sees that the method to amend the proposed Constitution was a matter of great contention, and Article v seems to have been adopted in its current wording with much doubt and trepidation, almost as if the framers were simply exhausted.
The method of changing the Constitution by the amendment proposal method is generally well known, but the second method, the calling of a Constitutional Convention, seems to be a very murky area in its details and mechanics.
Pay special attention to the second method of ratification: "or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress."
This seems to allow the congress by a simple majority vote to propose either form of ratification: either by 3/4 of the state legislatures, or by 3/4 of "conventions" in the states.
This last part has me scratching my head. Who picks the members of the "state conventions?" How are delegates selected? How are the rules governing these state conventions determined? Are the "state conventions" held in the individual states, or by delegates sent to the Constitutional Convention?
I wonder if this does not provide ample leeway for dangerous mischief by Congress. Already we have seen the Amendment process subjected to forms of abuse. States which voted to ratify amendments have later rescinded the ratifications, only to have it decided that they could not revoke them at all! (ERA.) The time in years allowed to pass an amendment has been put into an amendment, only to have the time extended when it ran out. (ERA again.)
In an era when the SCOTUS has gutted the 5th Amendment takings clause by stretching the definition of public use beyond all recognition, I worry how Congress might stretch and deform Article V in an attempt to virtually write a new Constitution, through the misuse of bogus "state conventions" in the ratification process during a Constitutional Convention.
Yes, 2/3 of the state legislatures would have to vote to hold a "Con-Con," and that has seemed to be in insurmountable hurdle. But I can see the possibility that a very angry "grass roots" movement could threaten a detached and unresponsive Congress by calling a Con-Con. The only way this movement would be able to gain traction and the undivided attention of that unresponsive Congress would be by attaining support of 2/3 of the state legislatures. This does not seem impossible.
Once the Con-Con is called, all bets would be off, and a hostile Congress would then be in a position to rig and gerrymander that unclear and ambiguous "state convention" process.
With the precedents of disallowing of the rescinding of votes for ratification, and the extending of deadlines, it seems like almost any outcome could be attained, including an entirely new Constitution.
Remember, the first Constitutional Convention grew out of a simple convention to update the Articles of Confederation. The delegates at that first Con-Con took it upon themselves to write the "new" Constitution.
Am I wrong about the dangerously ambiguous nature of the "or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress" wording in Article V?
Some sources, if you want to read up on the subject.
http://www.constitution.org/dfc/dfc_0910.htm
http://www.absoluteastronomy.com/encyclopedia/L/Li/List_of_unsuccessful_attempts_to_amend_the_U.S._Constitution1.htm
http://teachingamericanhistory.org/convention/debates/0910.html
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/unamendable.html
http://press-pubs.uchicago.edu/founders/documents/a5s2.html
http://www.constitution.org/dfc/dfc_0915.htm
http://teacher.scholastic.com/researchtools/researchstarters/presidents/constitution-2.htm
http://www.nobleednews.com/us_constitution.htm
http://www.constitution.org/dfc/dfc_0910.htm
http://www.thisnation.com/library/antifederalist/49.html
One of my poli sci professors from college felt that if a Convention was called that it could discuss and act on anything it wanted to, even if the legislation approving the convention limited its scope to certain areas. He felt that anything that came out of that convention would be lawful when approved by the state legislatures or state conventions even if it violated the original constitution. The problem would be with all the different players involved, e.g.; 50 legislatures, Congress, media, the public, interest groups, etc. With so many players involved he didn't feel anything truely radical could come out of a Convention.
Right, but Congress, it seems, has major scope to rig those so-called "state conventions."
Article V: "or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;"
It seems that 3/4 of the state legislatures might in good faith call a Con-Con, but that a bitter and detatched Congress might hijack the entire event via rigging the "state conventions" process according to the wording above.
The conventioneers would be chosen by the people of the state the same way their representatives are chosen. The sticky issue might be how to district them, but that would have been an issue as well when the Constitution was first ratified, by individual state conventions. Also, the 21st amendment (repealing the 18th) was ratified by state conventions as well, as a way of getting around prohibitionist-minded state legislatures.
The conventions would determine their own rules just as legislatures determine their own rules, and there would be separate conventions held in each state.
Now this of course refers to the method of ratifying amendments. When it comes to proposing amendments, that could be done (in lieu of Congress) by a national convention, not by state conventions. But everything else would be the same as what I described above. Districting would be a sticking point, but they'd make their own rules for proceeding once they're elected.
5 members of SCOTUS can re-write the Constition and have done so many times.
First of all, every single one of the state calls for a constitutional convention, save only three of them in 1788, have called for a convention RESTRICTED to a single, specified subject. A Special Committee of the American Bar Association concluded, and the whole ABA agreed by a vote, that this means a limited convention results when 2/3rds of the states have called for a limited convention on the same subject.
Second, there is nothing whatsoever obscure about state ratifying conventions. We have used them twice in our history. The first time was for the ratification of the Constitution itself, the second was for ratification of the repeal of prohibition. In both cases, the legislature of each state provided election laws for the election of delegates to the convention in each state, and that convention once elected, acted as it chose on the subject at hand.
That's how we got the Bill of Rights. Virginia and New York's Conventions in particular made clear that they would NOT ratify the Constitution without the pledge of the federalists to allow a Bill of Rights. The newly-elected Congressman, James Madison, took the 200 demands from the states, boiled them down to 17 Amendments which passed the House. The Senate passed 12 of them. And 11 of them (NOT a misprint) were ratified as the Bill of Rights.
The only reason you think this is a strange procedure which could produce "run-away" results, is that you do not know that every aspect of this subject has been used before, and worked just like the Framers intended. There is no mystery here, only ignorance. (And more than a little of that ignorance was generated by Phyllis Schlafley as a fund-raising gimmick.)
Congressman Billybob
And so what would actually happen if a national convention were to go beyond its initial mandate, just as the original Constitutional Convention did? And how would one decide whether the amendment(s) drawn up by this convention did or did not go beyond that mandate, seeing as how almost any two things can be made to appear related in some fashion?
The only reason you think this is a strange procedure which could produce "run-away" results, is that you do not know that every aspect of this subject has been used before, and worked just like the Framers intended.
The procedure for calling a national convention as described in Article V has not been done before.
The old Congress under the Articles referred it to a commission, and the commission recommended a Constitutional Convention (the issue was so profound).
Next thing you know there it was.
BTW, the original issue was resolved just a couple of years back ~ in Virginia's favor!
Do they all have to call, over the same issue?
Do they have to call, in the same year? Decade?
Personally, I hope it NEVER happens - what is the best outcome we could expect? "AND WE MEAN IT, THIS TIME!"
I fear....just my own demon per se....that a constitutional convention of any kind will result in the balkanization of this country.....regardless of the party that drives it.......
As to your book, I hope it's as good as the first but doesn't come true like Jeffs series seems to be doing....:o)
I don't think that's been the case yet. It's come close, though.
Bookmarked Travis.
Troubling.
Thanks for the ping... :) ~jj
I beg your pardon? The VA/MD line is still the mean high tide mark, on the VA side of the river, as originally decreed by King whathisname of england. That hasn't changed in 400 years - unless you have new info?
Odds are, you've never heard of the Annapolis Convention. I have a copy of its Report, drafted by Alexander Hamilton at the direction of John Dickinson, President of that Convention. It calls on all states to appoint and send delegates authorized to do "whatever was necessary, as the exigencies of the circumstances required."
That meant a General Convention. After seven states had agreed to send delegates to Philadelphia, the Congress (then meeting in New York) sought to board the bandwagon that was nearly out of town, and passed a Resolution which sought to restrict the Convention to "amending the Articles of Confederation." But Congress itself recognized that its statement was only advisory. The first five words of that Resolution are "In the opinion of Congress...."
Only two states, Massachusetts and New York, sought to limit their Commissioners the way Congress suggested. One of those states, New York, was officially absent from 10 July 1787 on, because Robert Yates and John Lansing (a quorum of that state's three Commissioners) left the Convention never to return.
So the entire run-away Convention argument is based on the fact that two Massachusetts Delegates, after consulting with the legislature which appointed them, decided to support the Constitution as written.
I did check through most of the research sites listed in this thread. Not a single one avoided major errors in describing the process. Some of them were shot through with errors. Any description of the process which does not include the Report of the Annapolis Convention of 1786 is written by an incompetent lawyer, professor, researcher or other author. The answers are all there in the original documents. But it is necessary to read ALL of them, to understand the process.
Even Catherine Drinker Bowen's' magnificent book, Miracle at Philadelphia, gets this one point wrong about the source of the Delegates' authority to act. That came not from Congress, not from the Articles of Confederation, but directly from the sovereign states in the Commissions they each adopted to set the power of their representatives. (And yes, I have all twelve of those documents on my desk as well. Rhode Island alone did not adopt one, because it never participated in the Philadelphia Convention in any way.)
Trust me, I know these things. I wrote the Introduction to the 1988 facsimile reprint of Robert Yates' Secret Proceedings and Debates of the Convention to Form the US Constitution. That is in most law libraries, and most of this information is there. The rest is in the Index of Original Documents which I provided to the legislative committees of some 27 states where I testified over a quarter century as an expert witness on this subject.
John / Billybob
I think the falseness of this argument would have been news to Madison. He conceded that charge in the Federalist Papers.
Pay special attention to the second method of ratification: "or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress."
This seems to allow the congress by a simple majority vote to propose either form of ratification: either by 3/4 of the state legislatures, or by 3/4 of "conventions" in the states.
This last part has me scratching my head. Who picks the members of the "state conventions?" How are delegates selected? How are the rules governing these state conventions determined? Are the "state conventions" held in the individual states, or by delegates sent to the Constitutional Convention?
First, let's seperate the methods of proposing Amendments from the methods of consideration of ratification of said proposed Amendments to the Federal Constitution. Amendments may be proposed by either the Congress, with two-thirds of each of the Houses of Congress agreeing to send a proposed Amendment to the several States or by two-thirds of the Legislatures of the several States applying to Congress to call a Constitutional Convention.
Article V
"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."
Now, once either the Congress or a Constitutional Convention have arrived at either one or multiple proposed Amendments to the Federal Constitution it is singularly the prerogative of the Congress to determine by which particular method of ratification that the proposed Amendments shall be ratified. There are two paths for State ratification that are defined in the US Constitution. The one most used is to issue the proposed Amendment to the several States Legislatures for consideration. This is the one that is full of legislative calendar delays, political horsetrading and possible State Legislative requirements (possible varying supermajority requirements) which are rarely mentioned. The other method (used only once for Amendments) is to issue the proposed Amendment to "State Conventions" for their consideration. Much faster and direcly reflects the "will of the People" of the several States. Of course, the State Convention method was actually used to approve the Constitution itself...
For example, the Congress determines which of the two methods of submission to the States shall be used in the body of the Amendment and all States must use that method of ratification, either via the State Legislature or State Convention. Look at Section 3 of the 21st Amendment listed below. The amendment was ratified by the method specified, by "conventions in the several states" within seven years of its submission to the States by Congress. Where the several States do have leeway is in how they compose their own State Conventions is that is how the Congress submitted said Amendment for consideration.
Amendment XXI
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.
Now the funny thing is, because of an organization know as the "Voluntary Committee of Lawyers" back in the late 1920s, forty-eight of the fifty States have very similar laws on the books concerning the creation, composition and conduct of said State Conventions used to consider Amendments to ratify the Federal Constitution. It would not be much trouble for Alaska and Hawaii to copy and pass similiar State Convention laws. While the Federal Constitution does not define how said State Conventions are to be defined, the passage of the 21st Amendment (repeal of 18th, Prohibition) caused the creation of the laws concerning State Conventions, so they are already in the statutes of the several States, ready to be used.
Now why should we today even care about such arcane information? Because if any proposed "Amendment" is ever passed out of both Houses of the Congress via the 'State Convention' method has a few advantages. First off, it is proven to be one of the fastest method of ratification. The 21st Amendment was submitted to the State Conventions on February 20th, 1933 and was approved by three-forths of the State Conventions by December 5th, 1933. This nine and one-half months was the shortest time in which an Amendment was added to the Federal Constitution, excepting the uncontested 26th Amendment (18 year old vote) which took three-months and eight days by the State Legislatures. Secondly, the State Conventions are really just an indirect method of a State plebisite, since by the State statutes enacted in the 1929-1932 time-frame the Convention delegates are elected via popular vote and thus the delegates vote in the State Convention in the same proportion as did the State-wide popular delegate races. The State Convention finishes its sole business, then permanently adjorns - the delegates again just private citizens. So in essence what many Amendment proposers sometime desire is possible, that the People of the several States express their wishes by Majority rule, without the State Legislatures who are beholden to minor constituant groups or vested interests blocking even the consideration of said submitted Amendment. It also has the side affect of protecting the members of the State Legislatures from voter backlash on any highly charged issue by letting them point out that it was the "will of the People" expressed directly at the polls. The best reason for using the 'State Convention' method for any proposed "Amendment" is that it would reinforce the unwritten code that "social" amendments are proposed (indirectly) to the People of the several States, and that proposed "governmental" amendments are submitted to the Legislatures of the several States. This may be considered an artifical distinction, but the Prohibition, the Repeal of Prohibition and a possible "Marriage" definition are distinctly on the "social" policy side of the ledger, whereas the all the other Amendments are on the individual rights, State's rights, or process amendment side of the ledger.
Hope this helps,
dvwjr
Odds of that happening.?... However I may win the lottery..
A recent article at http://greennature.com/article1593.html described it thusly: "Maryland and Virginia are in a legal battle over control of the river. The fight began five years ago when activists like John Mathwin convinced Maryland, which owns the river under a 1632 grant from King Charles I of England, to refuse to approve a Virginia permit to build the new intake pipe. "
So, yes, things have changed since 1632. In fact, once Maryland signed that 1790 Constitution it no longer "owned the river"!
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.