Do We Need A New Constitutional Convention?

LessonPlanPage.com ^ | 1/25/2006 | Andrew Costly

[Congressman Billybob]

The seven-year limit has been used by Congress in all recent proposed Amendments. And the Supreme Court has ruled that that is a legitimate use of Congress' power. So, that issue is resolved.

John / Billybob

[supercat]

Granted, the fact that Arkansas is a small rural state exaggerates the problem because there's a limited pool of people who are qualified for office, but even on a national level if you force high turnover in Congress, while you get rid of some people like Ted Kennedy, if you get good people, you (by law) can't keep them in office. You also take a hit on experience.

While there is some benefit to having people in office with experience, the seniority system has some pretty severe downsides of its own.

Personally, I wouldn't mind having people who had been in Congress be eligible for another run if they left periodically. Perhaps something like the following rule: No person serving a term as a Senator, Representative, President, or Vice-President shall be eligible to election to any one of those positions except that:

1. A Senator or Representative may run for the same or another legislative position, provided that such a person has not held legislative office for 12 or more consecutive years and would not do so if any previous term had run to completion (e.g. someone can't serve for 11.5 years, quit the office, and immediately run again)
2. A Senator or Representative may run for the offices of President or Vice-President provided that, at the end of the present term, the person will not have been in office for more than six consecutive years and provided that the person, if a Senator, has tendered his resignation effective at the end of the current term, regardless of whether he is elected to his sought-after post.
3. A Vice-President may run for the office of President, subject only to the existing term limits therefor.

I don't see any need to tell a politician that once they've been in Washington awhile they must leave and not come back, but I do think it would be good for them to get some time out of office occasionally.

[loveliberty2]

Thanks to Congressman Billybob (John Armor) for his usual informed and learned remarks. Now, if only we had assembled in Washington a few persons of the rare intellect, talents and abilities of Washington, the Adamses, Madison, Hamilton, Jefferson, Franklin, Jay, et al. . . .

But, listening to the shallow and sometimes constitutionally illiterate Senators today (Kennedy: "I learned in high school that there were two branches of government. . . ."), one wonders how this old Republic has withstood all the assaults on its principles.

[moehoward]

bump

[old republic]

Congress tacks those time limit provisions onto amendments that IT proposes. A time limit provision is oftentimes stated in the text of the amendment itself. If it becomes part of the Constitution then of course it is valid because the text of the amendment because the 7 year limit becomes part of the Constitution. Congress cannot tack the seven year limit onto the states call for a convention. The Supreme Court has never ruled that a seven year time limit may be placed on a call for a constitutional convention.

[tpaine]

The author claims:

Another point of anxiety is that Article V of the Constitution says nothing about what a convention may or may not do.
If a convention is held, must it deal with only one proposed amendment? Or could the delegates vote on any number of amendments that were introduced?
The Constitution itself provides no answers to these questions.

Actually, the Bill of Rights and the 14th Amendment make it clear that the peoples rights to life, liberty, or property are not to be infringed, abridged or denied, -- by any level of government in the USA.

Marshall made much the same point in Marbury, back in 1803:

"-- The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest.
It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future govern-ment, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.
The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated.
The principles, therefore, so established, are deemed fundamental.
And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. --"

Thus we see the fundamental principles of personal liberty in our Constitution as permanent.
Any amendments that violated those principles would be null, void, and repugnant.

[Congressman Billybob]

No, the Supreme Court has not ruled on the precise issue of a seven-year limit on "contemporaneous calls." However, as I said, it HAS ruled on the seven-year limit on "contemporaneous ratification." And the issue is nearly identical. Faced with silence of the Constitution on deadlines, can Congress make a "reasonable" judgment about what is "contemporaneous"?

The Court's answer, and it had no difficulty reaching this conclusion, is that Congress does have that authority. (It did so, IIRC, in a case concerning the limit on the Equal Rights Amendment.)

John / Billybob

[Congressman Billybob]

I have worked with many of the people at the national level who are trying to make this happen. The way to do it is to propose a model law in all states which would have a trigger number, and date. If, for instance, states holding at least 80% of all Electoral College votes passed laws creating District Elections of Electors by 1 January in a presidential election year, then all those laws would go into effect on that date.

This would prevent the first-in-the-water problem, that the states which acted first would be penalized in their clout in D.C. as compared to the states which held back. I think if this issue was pushed, that it would be popular with the public.

And I know from the statistics I laid out in my article for the Actuaries that all elections would be much closer to the popular vote than the present winner-take-all system (except in Maine and Nebraska). A little-known detail of the 1992 election is that Ross Perot came within about 10,000 votes of taking a single District in Maine, and therefore receiving one Electoral Vote.

John / Billybob

[supercat]

I have worked with many of the people at the national level who are trying to make this happen. The way to do it is to propose a model law in all states which would have a trigger number, and date. If, for instance, states holding at least 80% of all Electoral College votes passed laws creating District Elections of Electors by 1 January in a presidential election year, then all those laws would go into effect on that date.

So if everyone but New York and California does it, then they can control the national elections?

This would prevent the first-in-the-water problem, that the states which acted first would be penalized in their clout in D.C. as compared to the states which held back. I think if this issue was pushed, that it would be popular with the public.

How do you avoid violating the rule about states making pacts with other states, or the problems that can occur if one state's change to non-winner-take-all allocation is challenged?

[Congressman Billybob]

Our Constitution, unlike many of the world's constitutions, is short. (IIRC, the Indian Constitution runs to some 7,000 pages.) Ours does not attempt to spell out all the details of most subjects. That's were the much abused "Necessary and Proper Clause" comes in.

Bottom line, in hundreds of cases over the centuries, the Supreme Court has ruled that where the Constitution is silent on a specific subject, but it gives a duty to Congress to perform, Congress can supply those details by ordinary legislation, so long as it is reasonable and in keeping with the constitutional authority being carried out.

There has not been an occasion for the Supreme Court to review the parameters established by Congress in 1992. But the legal principle that Congress can act on details where the Constitution is silent, is almost as old as the Constitution itself.

John / Billybob

[Let's Roll]

"Absolutely not! Open one of these and they would run right over us."

In exactly the way the minority runs the senate now - they would fight dirtier than our guys would even dream of - rinos like McCain would be on their side - USA fini would be the result.

[Let's Roll]

Like CFR - term limits would just make it so much easier. The same dangerously, naive fools want term limits the way they wanted CFR.

Heaven forbid that the voters should actually have to choose candidates of integrity and/or get rid of scoundrels. It's just so much easier if term limits do their work for them.

With limited time to feather their nests under term limits, the bad guys would spend all of their time feathering their nests. Think, people! (not you ark_girl)

[Congressman Billybob]

I haven't looked at the Electoral College count recently, but I believe California and New York alone would exceed 15% of the count. Therefore, those two states would prevent the entire national change from taking place.

The goal would be to get the small and medium-sized states to agree, since they would all gain by having candidates pay more attention to them to pick off a handful of EC votes in otherwise untouchable states for either party.

Then, the second goal would be to embarrass the large states into acting on the grounds that it is greatly democratic (with a small d) for the EC results to be much closer to the popular vote. BTW, President Bush would still have won both of his elections under this plan, because the Democrats tend to rack up very high margins in just a few Congressional Districts, and that would not change.

It would be a situation in which the Republicans are in favor of "listening to and empowering the people" and the Democrats are dragging their heels. That's my kind of issue. LOL.

John / Billybob

[righttackle44]

"Do We Need A New Constitutional Convention?"

Why? Have we lost one?
The Dims would just LOVE a chance to
change the Constitution.

[Wolfstar]

What two or three provisions of the Constitution do you think we still live by?

The Electoral College system.

The way we elect U.S. representatives.

The way we elect U.S. presidents.

Two senators per state.

President nominates federal judges and exectutive branch appointees. Senate advises and consents.

That's just five. There are many more.

[tpaine]

old republic wrote:

Congress cannot tack the seven year limit onto the states call for a convention.
The Supreme Court has never ruled that a seven year time limit may be placed on a call for a constitutional convention.

I agree, in that neither Congress or the Court have a delegated power to, in effect, drastically change Article V..

However, I do not see much of a chance for a 'runaway convention', as per my post at #46.. - Any comments?

[Rick_Michael]

The first Constitution (ie Articles) was a lot harder to change, and was essentially succeeded from. Our Constitution wasn't perfect at it's inception, as demonstrated by it's comprimise in slavery. Before the fourteenth amendment the Bill of rights only applied to the federal government, not the state...so even though most states recognized those rights, there was and still is imperfections here and there.

I couldn't stomach the thought of what would come out of a new convention. No insult, but I don't like proposed amendments on both sides of the aisle. The Constitution is almost a sacred thing, and only real principled thoughts should be imposed on it. I do think amendments should always be discussed, but I think most should be discarded as imperfect. I demand perfection out of any new Amendment, and I don't want a new convention to sh&t out something that isn't and will never be.

Personally, I think America would be just fine if we applied the Constitution as designed.

[mysterio]

If a convention means that we will throw out the myriad of laws in direct violation of the Constitution that currently exist, then yes, we need a new convention. Unfortunately, if we had one, it would be only be a tool for statists from the two major parties to throw out the remaining Constitutional protections that we still have.

[Congressman Billybob]

An Amendment to the Constitution cannot be "unconstitutional" by definition. The clearest example is Prohibition. It changed all states' laws. It obviously interfered with the "freedoms of the people." But the only way to get rid of it was for the people to amend it back out of the Constitution, which they eventually did.

And for you to say elsewhere as you did that a time limit "radically changes Article V" is just plain wrong. All federal and state law books are filled with deadlines by which action must be taken, or the opportunity is lost forever.

If the Constitution specifies a time limit -- elections are held on the first Monday in November, Senators shall serve a term if six years -- that's that, and Congress has no power to change it. But when Congress sets a deadline where the Constitution is silent, that deadline stands unless it is "unreasonable."

Beyond the logic, there is a Supreme Court case on point, which was not a close one.

As I said, since the Court has already ruled in this area, though not on precise point, I expect the Court will easily (none of this 5-4 garbage) uphold both the time limits and the subject matter restrictions. The first is at Congress' discretion. The second is at the command of the state legislatures, which are given the power to call for a new Convention.

It may be an arcane subject. But this ain't rocket science. It's all there in the pre-existing books. It's just a matter of reading them.

John / Billybob

[tpaine]

Actually, the Bill of Rights and the 14th Amendment make it clear that the peoples rights to life, liberty, or property are not to be infringed, abridged or denied, -- by any level of government in the USA. --

--- Thus we see the fundamental principles of personal liberty in our Constitution as permanent.
Any amendments that violated those principles would be null, void, and repugnant.
46 tpaine

Billybob comments:
An Amendment to the Constitution cannot be "unconstitutional" by definition.
The clearest example is Prohibition. It changed all states' laws. It obviously interfered with the "freedoms of the people." But the only way to get rid of it was for the people to amend it back out of the Constitution, which they eventually did.

Glad to see we agree.

Rick, Any amendments that violated our fundamental principles would be null, void, and repugnant. -- People would ignore them until repealed, just as we ignored prohibition.