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.
So who would be elected by the states? Yourself, your friends, and your neighbors.
Article I Section 6 only prevents United States officeholders from attending conventions without first resigning their current officers. What's to stop states from sending their own legislators instead of the "common man?" I don't think state assemblymen or senators would need to resign, do they?
The Framers’ Safety Valve...They were careful to enumerate Three Forbidden Subjects
Where are points 2 and 3 enumerated? I would look to Article VI Section 2 for limits.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Doesn't this say that the supremecy of the Constitution as the law of the land cannot be overridden by amendment? But is this enough to stop a convention from changing the Senate to be 3 Senators from each state? Is that an alteration of the arrangement of equal representation of the states (from 2 to 3)?
-PJ
“and (laughing here) a senior body of wizened statesmen of the highest moral character to ensure the longevity of the Republic”
LOL. Not so true today.
You are correct about what the Framers wanted, and what they wanted was tied very much to the concept of a republic. But the elections of 1800 and 1828 changed the focus from a republic to a broad-based democracy. That's why Jackson asked for 3 rather revolutionary amendments in 1829.
What's to stop states from sending their own legislators instead of the "common man?" I don't think state assemblymen or senators would need to resign, do they?
Convention delegates must be elected by the people of a state, not chosen by a legislature or governor. Could a state legislator run for delegate? Yes. Would he have to resign his seat in the legislature to run? No. That only applies to federal officeholders.
Doesn't this say that the supremecy of the Constitution as the law of the land cannot be overridden by amendment?
Technically, an amendment altering the Supremacy Clause might be possible because Article V doesn't forbid it. But vitiating that clause would void much of the Constitution and strip it of all enforcement value. It would be one step away from dissolving the Union.
But is this enough to stop a convention from changing the Senate to be 3 Senators from each state? Is that an alteration of the arrangement of equal representation of the states (from 2 to 3)?
As I understand Article V, the states must have equal representation. Three senators from each state would be permissible as much as one senator from each state. It's representation that must be equal.
Yes, I know and now we’re suffering the results of unintended consequences. I believe the framers debated direct elections of the senators and rejected it. In fact, if I recall correctly, the debate over the makeup and method of electing senators was nearly the deal breaker for the entire convention. It’s a shame the later generations didn’t fight the corruption rather than bastardising the system.
Now there's a sentence that resonates! I'd recommend Decision in Philadelphia, by the Colliers, a father-and-son team of historians. There were some at the Constitutional Convention of 1787 who were strongly inclined to favor the power of Congress over the states, particularly Alexander Hamilton. Most of Hamilton's ideas from his 5 hour "grand design" speech failed to make the grade, but some variations survived.
I would also recommend States' Rights and the Union, by Forrest McDonald, a professor of history at the University of Alabama and one of our best historians. (I envy his prose style.) McDonald, who is a Hamiltonian conservative, documents how the Supreme Court under John Marshall changed this focus to favor the federal government. Later the so-called "loose constructionists" pushed in the same direction, as did Henry Clay and Daniel Webster with their understanding of the Union that was significantly different from many, if not most, of the attendees in Philadelphia in 1787.
During the Civil War, Sen. Edward Baker of Oregon told Lincoln that once the rebellion was crushed, the states should be abolished. (Lincoln referred to Baker and some of the other firebrands as "Jacobins".) Fortunately for us all, Gen. Ned Baker was killed in a botched retreat at the Battle of Ball's Bluff, or else he would have been one of the most radical of Radical Republicans in the post-Civil War era.
Read Decision in Philadelphia, by the Colliers. It covers the Constitutional Convention, not by strict chronology, but by "thread". On some days, several different threads would be discussed and see progress, and sometimes threads would intersect. It's the best book I've ever read on that subject.
Agreed. My point is that I think that a state officeholder would have an almost insurmountable advantage over the common man when running for convention delegate. On the other hand, there would be more state delegates than the state legislature could tolerate losing for the duration, so others would have to participate. I would still be suspicious of "ringers."
Technically, an amendment altering the Supremacy Clause might be possible because Article V doesn't forbid it.
I'm asking about Article VI implications.
If you reread Article VI Section 2, I think that actually does forbid amending the supremacy of the Constitution ("... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.") To me, this means that you cannot amend the Constitution so that the Constitution is no longer the supreme law of the land, because that amendment would be a "thing in the Constitution" that would be in conflict with this section.
I'm not aware of any other language in the Constitution that makes such restrictions on what can be amended.
-PJ
I think that phrase is best understood as meaning anything in the State constitutions.
Some would say that nanny was conceived sub rosa after Lincoln was killed (perhaps before, as you suggest), sufficiently nurtured during Wilson's term and brought to full term under FDR.
I was reading that as "any (Thing in the Constitution) or (Laws of any State) to the Contrary notwithstanding" when I should have been reading it as "any Thing in the ((Constitution or Laws) of any State) to the Contrary notwithstanding."
This changes everything.
-PJ
For this particular point, you will be pleased to know that these laws usually forbid state legislators from running for these positions.
Congressman Billybob
I would recomend Henry Clay: Statesman for the Union, by Robert Remini. Clay absorbed the Madisonian Platform into his own American Plan, a program for high protective tariffs and federal appropriations for internal improvements.
Awesome article Publius ... well done.
“If we are going to re-institute slavery, I’ve got dibs on you”
Winnie (my 300 Win mag)says otherwise:-)
Its been said that the SCOTUS could 'strike down' an Amendment as unconstitutional. -- And that exact point was argued before them in 1919, in a move to nullify the 18th.
"-- The Supreme Court issued its most sweeping decision concerning the Eighteenth Amendment in June 1920.
Seven cases, each raising fundamental questions concerning the constitutionality of the amendment, were consolidated by the Court and labeled the National Prohibition Cases.
A host of highly regarded attorneys, including Elihu Root, William D. Guthrie, and Levy Mayer, as well as Herbert A. Rice and Thomas F. McCran, attorneys general for Rhode Island and New Jersey respectively, represented the appellants. The oral arguments lasted for five days, an unusually long time for even the most important cases.
The argument of Elihu Root attracted the most attention. The former Secretary of War, Secretary of State, and senator represented a New Jersey brewer.
Root asserted that the Eighteenth Amendment was simply unconstitutional.
Root from the outset opposed the form, spirit, purpose, and effect of the Eighteenth Amendment. He told friends that its denial of personal liberty, its potential for eroding respect for law, and its alteration of the balance between local and national government alarmed him."
Root gave a memorable peroration:
" --- If your Honors shall find a way to declare this so-called Amendment to the Federal Constitution valid, then the Government of the United States as it has been known to us and to our forefathers will have ceased to exist.
Your Honors will have discovered a new legislative authority hitherto unknown to the Constitution and quite untrammelled by any of its limitations.
You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself.
In that case, Your Honors, John Marshall need never have sat upon that bench." ---"
What was the result of that argument?
It seems to me that the Constitution, by definition, is Constitutional. If the process is followed correctly, the resulting amendment must be Constitutional.
You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself.
The Root quote tries to diminish the effort required to amend the Constitution so as to make amending the Constituion sound like a commonplace circumventing of Congress. The very purpose of amending the Constitution is to change the limits already present in it, given that the Constitution was designed as a limiting powers document.
I can see the Supreme Court ruling on Constitutionality of laws passed by Congress or the States, but does the Supreme Court have the authority to strike down parts of the Constitution itself? I wouldn't think so.
-PJ
The argument of Elihu Root attracted the most attention. The former Secretary of War, Secretary of State, and senator said that its denial of personal liberty, its potential for eroding respect for law, and its alteration of the balance between local and national government alarmed him:
" --- If your Honors shall find a way to declare this so-called Amendment to the Federal Constitution valid, then the Government of the United States as it has been known to us and to our forefathers will have ceased to exist.
Your Honors will have discovered a new legislative authority hitherto unknown to the Constitution and quite untrammelled by any of its limitations.
You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself.
In that case, Your Honors, John Marshall need never have sat upon that bench." ---"
What was the result of that argument?
The Scotus ignored it, and simply decreed the 18th valid, thereby in effect saying that our individual rights to drink booze can be flatly prohibited by 'majority rule'.
It seems to me that the Constitution, by definition, is Constitutional. If the process is followed correctly, the resulting amendment must be Constitutional.
Think about that idea; -- could 'we the people' re-institute slavery?
The Root quote tries to diminish the effort required to amend the Constitution so as to make amending the Constituion sound like a commonplace circumventing of Congress.
It does? I don't get that idea at all. Root is simply saying that even that major effort cannot justify infringing upon our basic rights.
The very purpose of amending the Constitution is to change the limits already present in it, given that the Constitution was designed as a limiting powers document.
Given that the Constitution was designed as a limiting powers document, designed to protect our rights from gov't infringements; -- does it make any sense to let 'majority rule' amend away those rights?
I can see the Supreme Court ruling on Constitutionality of laws passed by Congress or the States, but does the Supreme Court have the authority to strike down parts of the Constitution itself? I wouldn't think so.
The question before the Court in 1920 was whether 'majority will' can amend the Constitution, depriving us of a basic right. -- Sadly, the Court refused to give us a clear answer.
The people answered, with repeal, 13 years of lawlessness later. Root was vindicated, -- prohibitions "denial of personal liberty, its potential for eroding respect for law, and its alteration of the balance between local and national government", -- was a national disgrace.
Should that be the only thing standing between you and slavery? Or do you agree that at least some of the post-BOR amendments were a good idea?
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.