Posted on 04/25/2007 9:35:16 AM PDT by Publius
“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.”
– Article V of the Constitution of the United States
The Founding Fathers provided two methods to propose amendments to the Constitution.
The Framers also provided two options for ratifying amendments, and they authorized Congress to decide which option was appropriate. The Supreme Court has ruled that Congress is limited to choosing one of the two options.
One thing is perfectly clear: Article V gives the states assembled in convention the same proposal rights as Congress – no more, no less. And no matter whether an amendment originates with Congress or a Convention for Proposing Amendments, it must be ratified by three-fourths of the states before it can become part of the Constitution.
The Framers’ Safety Valve
Fearing a tyrannical Congress would block the amendatory process, the Framers formulated Article V, wording it so as to fence off the Constitution from hostile or careless hands. They were careful to enumerate Three Forbidden Subjects:
The last Forbidden Subject is implied, rather than explicit, like the first two. The Framers took great pains to avoid using the term “constitutional convention”. Instead, the Founding Document refers to a “Convention for proposing Amendments...as Part of this Constitution”. An Article V Convention is strictly limited to proposing amendments to the Constitution of 1787, and it is forbidden to compose a new constitution. No matter what amendments may be proposed, the Constitution must remain intact, else the actions of the Convention become unconstitutional. Unless Article V is amended first to allow it, a Convention for Proposing Amendments can never become a true constitutional convention, i.e. it can never write a new constitution. And neither can Congress.
How It Would Work
The Founding Document is silent about a Convention for Proposing Amendments, except for establishing its existence and the criterion of its call by Congress. In 1965, a commission of the American Bar Association laid out what could be divined about the Framers’ intent. Then in 1992, after the commotion over the unexpected ratification of the 27th Amendment, originally proposed in 1789, Congress passed a bill reforming its involvement in the amendatory process, to include regulating the petitions for a Convention for Proposing Amendments and regulating the Convention itself.
Who Represents America?
Article I, Section 6 of the Constitution prevents a sitting congressman or senator from taking a seat as a delegate at a Convention for Proposing Amendments unless he first resigns his seat in Congress. It is safe to say that few would be willing to give up the permanent power of Congress for the transitory power of an Article V Convention.
So who would be elected by the states? Yourself, your friends, and your neighbors. All you have to do is run for Convention Delegate. There would be no need for a party endorsement or a campaign war chest. Anyone who raised a vast sum of money or took campaign contributions from vested interests would immediately fall under suspicion. After all, an Article V Convention is about the Constitution, not pork, perks and personal power.
Anyone who wishes to run for Convention Delegate will have to know his Constitution. He will have to take a stand on the subject(s) the Convention is to consider, and he will have to be able to defend that position in public. He won’t be able to hedge, waffle or use weasel words. Most importantly, the candidate for Convention Delegate will have to be a person of integrity, respected in his community.
The conservative caricature of an Article V Convention is a disorderly mob of statists from Massachusetts, welfare recipients from New York, and New Agers and illegal aliens from California. The liberal caricature of a convention is a gaggle of sexually maladjusted theocrats from Mississippi, American Gothics from Indiana, Johnny Rebs from South Carolina and bearskin-clad mountain men from Alaska.
Of course, the Convention will be representative of America at that time and place. All facets of America will be there, and that is as it should be. At an Article V Convention, everyone will have an opportunity to make his case, and everyone will have to lay his cards on the table. It's even possible that the Convention will send no amendment proposals to the states or that the states themselves will choose not to ratify.
So why go through all this?
There has long been fear of a Convention for Proposing Amendments because Americans have never used that tool. To most people, this is uncharted territory. But the Framers and Congress have provided a roadmap. Once the Convention meets, does its business and adjourns, Americans will understand that the Convention is just another tool provided by the Framers. Congress and the political parties will be on notice that the People have found another way.
For that is the beauty of the Constitution of the United States. It is designed to be changed by the People, either through their national government or – should that government fail to satisfy their mandate – through a second system of amendment. The Framers bequeathed the People two methods of amendment so that the government would always be under the People’s control.
There is no reason to fear the Framers’ bequest.
Trust me, I've spent 25 years on this subject. There is a difference between conditional calls and absolute calls.
John / Billybob
Fair enough.
When Congress passes an amendment on to the states for ratification, the states have a federal duty to perform under the rules delineated in Coleman.
When a presidential election is held, the states have a federal duty to choose Electors and have them cast a state's electoral votes according to the rules delineated in the Constitution as modified by the 12th Amendment.
The petitioning of a state for an Article V Convention is not a federal duty, but an option. Thus, a state may attach conditions and timelines to said petition, and this right is covered by the basic concept of state sovereignty.
John / Billybob
The 1992 law discharged all those petitions that were filed from 1789 to the day the bill was signed into law. Thus, as of today, 3/8/2010, the only valid petitions out there are those filed after 3/8/2003 -- and there probably aren't any.
But what about all those amendment proposals passed by the appropriate margins in Congess that have sat out there since 1789 without the proper number of ratifications? Did the new seven year rule consign those amendment proposals to the dustbin, or are they still out there for ratification purposes?
How convenient. Congress controls the “top down” method of amending the constitution - and no Congress, whether controlled by dems of pubbies, can ever be expected to proposed amendments which will meaningfully curtail their power. According to your post, that same Congress has also passed legislation which purports to give themselves effective control over the “bottom-up” method, the constitutional convention. Can you in your wildest dreams conceive of a Congress like our current Congress allowing a convention to proceed to debate issues where their control is threatened? They would endlessly prevaricate and hedge and obfuscate, finding infinitely miniscule faults in the states’ petitions to frustrate the call for a convention, even if 100% of the states so petitioned Congress.
How can Congress purport to control BOTH methods. What if, instead, 2/3 of the states called for a convention and proceeded to fund and hold the convention, without federal representation, according to whatever rules the officers selected by that convention devised? Congress be damned. I do not fear this process, where whatever results must be ratified by 3/4 of the states.
Frankly, allowing Congress to control the convention process makes as much sense as it would have made for the founders to allow King George to control the original convention. If the imperial federal government rejected an amendmdent, proposed by a convention it did not control but ratified by 3/4 of the states, then it would indeed be time to lock and load, and start erecting gallows on the mall in D.C.
Would Congress attempt to use any and all means to prevent a conventon? Absolutely! This is why Judge Napolitano pointed out how critical the wording was for those state petitions. However, once the two-thirds threshold has been met, Congress must call a convention, and this was reinforced by a number of old Supreme Court decisions.
As far as the states doing it on their own, Article V forbids it. Congress must call the convention for it to be valid. Further, when the convention finishes its work, should the convention produce one or more amendments, Congress must decide whether the states should ratify by the Legislaive Option or the Ratifying Convention Option. This has also been reinforced by some old Supreme Court decisions.
The biggest and most serious threat in your post is that Congress will try to weasel out of doing its job in calling the convention. I know it will, because it's about power, not about Democrats or Republicans. But that's where Judge Napolitano's warning comes in -- the states must coordinate to dot all the i's and cross all the t's.
Appreciate your prompt reply.
Next question: what are we waiting for? What a wonderful project for the boundless enthusiasm of the Tea Party movement, to start organizing to pressure the states to do what needs to be done.
The Tea Parties are wonderful things, but this will require the kind of legal thinking that only state legislators and ocnstitutional lawyers can muster. Every base and every word has to be covered, or else Congress will find a nit somewhere big enough to deny the states their constitutional right to convene to propose amendments.
Thank you both for your work on this thread. The subject is becoming more timely each day.
Once again, Americans will be called to go forward in a firm and steady manner, as they have historically in the face of challenges to their nation.
To quote Clausewitz:
“ strength of character does not consist solely in having powerful feelings, but in maintaining one’s balance in spite of them.”
An Article V Constitutional Convention is long overdue. The Founders put it in place to ensure that the will of the People and the States would not be infringed upon by the 3 branches, who may have some allegiance to each other. See Federalist Papers 50 and 51.
Some issues for this Constitutional Convention:
Term Limit Amendment
Balanced Budget Amendment
Clarification of “Commerce” and “General Welfare’ clauses
Repeal of Obamacare (individual mandate)
If you scroll to the end of the Federalist Paper, you will find a group of essays, one of which is the shortened and correct version of this essay.
Thanks for the clarification Congressman Billybob.
Congressman Billybob, aka John Armour of Asheville, NC, passed away last year. It was a major blow to FR.
I’m sorry to hear that.
I missed the report.
Thanks.
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