You are so right. I can't stand it, but they are here.
Posted on 08/17/2013 5:45:09 PM PDT by dontreadthis
I'm not sure what your point is, but if you're saying what I laid out sounds like the blueprint for a Con Con, it flew completely over your head.
A Con Con, or any 5th Amendment "cure" calls for the states acting in conjunction with Congress. It requires their co-operation. They've already demonstrated they have no interest in obeying in the Constitution; neither to the executive branch or the judiciary. Why would they want to co-operate with a bunch of uppity states? To them, state legislatures are nothing but glorified city councils.
My point is that the states should form a coalition, free and in the clear of Congress, and tell them what laws we will and won't obey; the same goes for which executive branch agencies, which SCOTUS rulings, etc. The states' coalition would not go begging, hat in hand, for Congress to please recognize delegates sent from the states to make it happen, and please pass our amendments with a 2/3 majority. The coalition would take the bull by the horns, tell Congress to go pound sand, to stick it up their pampered and perfumed kiesters, and if they don't like it, you know where to find us.
That is far from a Con Con. It would be the states, and We The People standing up and taking the reins of our Republic back from those who have driven us into a ditch.
Scouts Out! Cavalry Ho!
thanks for taking the time to try to decipher my reply, and for your discussion. While all of us are frustrated, I support pushing Article V, as written, as far as patience and conscience will allow. Failing that, I could envision circumstances that would result in the scenario you have described. But, in my opinion, that scenario would transpire with enough popular determination only after the states endure a train of abuses in their effort to convene and dispose.
I have a long and detailed response to this, but FR won’t let me post it. I’ll have to wait until the problem is cleared up.
Levin's idea is like walking into a meeting with the mafia and saying, “Here are new laws to keep you in line.” Imagine the snarky laughter.
Fundamentally, we do NOT have a constitutional problem. We have a problem with the HEARTS of the citizens of this nation! No number of amendments, constitutions, or laws will corral evil if the hearts of the people are grounded in morality, honesty, and the good will to make a republic work.
And...Remember. Levin is the guy who **KNOWS** that Obama fails e-verify, has posted forged birth documents, is using another man's social security number, and even stated on the jacket of his autobiography that he was born in Kenya. Levin has been completely SILENT on this likely abuse of our EXISTING Article 2, Section 1, and he believes he can perfect our existing Constitution. Really? Seriously?
Given this record of defending our Constitution, I wonder if Levin has been paid to kick the conservative ant-hill so that he can get conservatives running around ineffectually distracted from the real problem.
The real problem: The hearts, minds, and souls of the American people.
Finally.... Our nation's godless schools are stuffed full to the brim with the children of conservatives and Christians. And, nearly all of our nation's teachers from pre-K through graduate school were trained by godless Marxists in Marxist run colleges and universities.
Given the trajectory of this nation and those indoctrinating the nation's next generation of voters I am NOT hopeful.
I think one of the major factors behind the country's slide into lawlessness is a failure to recognize that because not all illegitimate acts justify a possible remedy, the fact that a particular act is found not to justify a remedy does not imply that the act was legitimate. Related to that is a failure to recognize that government agents are required to make a good faith effort to act legitimately, and not merely to avoid acting sufficiently illegitimately as to justify a remedy [a distinction which would become very relevant if there were a proper distinction between "legitimate acts" and "illegitimate acts which do not justify a remedy".]
As an example, consider the Fifth Amendment prohibition against denial of property without due process of law. The issuance of a search warrant is not "due process" sufficient to give cops carte blanche to destroy someone's property. Accidental damage of property during a search would not render the search illegitimate; even intentional destruction of property could be legitimate if genuinely necessary to the performance of a search [e.g. if a property has multiple entrances, all of which are locked, cops may be justified in forcing entry even if it causes some damage, provided they attempt to minimize such damage]. The fact that some damage may be acceptable, however, does not give cops the right to cause any deliberate damage without first making reasonable effort to avoid causing any [e.g. checking to see if any doors are unlocked, or if keys are hidden in obvious places]. The fact that courts are unlike to take action against a cop who causes e.g. $20 worth of damage doesn't mean that a cop who could easily have avoided causing any damage but instead tries to cause only $19.50 worth of should be deemed to have acted in good faith if the damage ends up being $25. Unfortunately, because of courts' failures to make a distinction between the level of damage a cop may inflict without any cause whatsoever and the level of damage sufficient to justify a remedy, any level of damage which doesn't justify a remedy will be regarded as de facto legitimate; in future, damages which are only slightly beyond the "legitimate" level will be found not to justify a remedy, and become a new de facto standard, etc.
At this point, the only way to restore legitimate governance is to recognize that an inability to order remedies for past government actions should not imply any obligation to declare them as having been legitimate. Courts need to be willing to say, essentially, "We're sorry you were harmed by the government, but there's no remedy we could order which would not cause problems just as bad as the harm which was done to you. Our inability to remedy the harm should not be taken as a justification for the government's actions, but rather as a denunciation. People who contributed to the unfortunate chain of events in the past may have been acting in good faith, but government employees who contribute to such events in the future will be regarded as having done so in bad faith.
Incidentally, in addition to allowing courts to find that many past actions were never legitimate, but may have been done in good faith, I would like to see legislation offering government employees who have not yet been charged with violating people's civil rights a deal: if they waive the statute of limitations on such charges and agree to resign from and never again occupy any government position of direct or indirect discretionary authority over persons who are not government employees, they will not be charged unless or until they attempt to assume such a position. I suspect many employees who presently feel a need to keep their positions lest a successor uncover their wrongdoing, might be inclined to instead go quietly; it is IMHO more important to get such people out of government than to ensure that they face justice.
Thanks to Reynolds v. Sims, i.e. “One Man/One Vote”, both houses of state legislatures are apportioned by population. There is no real difference between the lower and upper houses of a state legislature, thanks to Reynolds.
It opens the door to supervision by the court to make sure that minorities are properly represented.
A state ratifying convention would use the more numerous (lower) house of its legislature as its model. Each district of the lower house of the state legislature would elect one delegate to the state’s ratifying convention. This is how it was done in 1933.
There can be huge amounts of election fraud because it is not clear that the federal election laws would apply to this procedure.
This would be a state matter as it was in 1933 when state ratifying conventions were held to vote up-or-down on the 21st Amendment.
Nor is it clear that the rules of the legislature of each state would apply to the conduct of the conventions leaving the field open to chicanery. Ratification by convention would be a venture into uncharted territory leaving the entire process open to ambush. It opens the entire process to endless litigation.
Nonsense. This territory was charted in 1933. The reason Congress chose to place the 21st Amendment before state ratifying conventions rather than state legislatures was because state legislatures, county governing bodies, city councils and police forces were totally infiltrated by bootleggers. Vast swaths of American governance and police power were bought and paid for by the illegal liquor industry. Only by going directly to the people of a state could an honest ratification vote be taken.
Furthermore, the left no doubt will insist that the delegates to the convention for the proposal of amendments (as distinguished from conventions which might be selected by the United States Congress to ratify or reject amendments proposed by the national convention) be selected in accordance with the same one man one vote requirement. If this occurs, the big leftist states of the Northeast and the West Coast will prevail and block conservative amendments from being proposed.
The ABA Report to which I linked represents the thoughts of the ruling class as to how an Amendments Convention should be conducted. It is only logical that they would believe that Reynolds would apply to the States Assembled in Convention. The ABA recommends that Congress legislate a convention of 435 members, and each congressional district would elect one delegate to the convention. I would be willing to stake a substantial amount of money that if Congress has its back to the wall and is forced by the states to set the time and place for an Amendments Convention, that old ABA Report will come out of 535 dusty file cabinets, and its recommendations will be legislated into law.
I am also willing to bet that at least one state attorney general will go into federal court and litigate under the grounds that Congress has overstepped its bounds. In the end the Supreme Court will rule whether Reynolds applies to an Amendments Convention or not. My personal feeling is that it doesn’t, but that’s just me.
They will be able to accomplish this because delegates might not be permitted to vote on a state basis but on basis of representing population. In other words, there will be no winner take all vote controlling a state's support or opposition to a proposed amendment, instead the issue will be decided by individual delegates who will in no way be beholden to their state but only to the concept of representation of population.
In the brief for Walker v. US that I edited from 1998 to 2000, Walker addressed this. It was his belief that the Amendments Convention should be elected on the basis of the Electoral College, i.e., one delegate from each congressional district and two from each state elected at-large. Walker believed that each amendment proposal should be tallied by both state and population, and it would be necessary for an amendment proposal to overcome two hurdles. The first would be that tabulation would be accomplished by a vote of each delegate with the necessary majority achieved by the principle of one delegate/one vote. The second would be that the tabulation would also be accomplished within each state, and if the majority of the state’s delegation agreed to an amendment proposal, that state would grant its one vote, and the appropriate majority of states would be necessary to push that proposal forward, i.e., one state/one vote. Walker insisted that one vote had to be tabulated two ways for an amendment proposal to be reported out by a convention. Complicated, isn't it?
It was a clever way to get around the problem you fear. Unfortunately, the federal courts refused to grant cert to Walker, and my work was for nothing. But I did learn a lot about the issue, so it was a fine educational experience.
I have not done the arithmetic but I assume that conservatives would be better off having a convention for the proposal of amendments done on a state-by-state winner take all basis because, as Levin points out, we have been relatively more successful in winning state legislatures, governorships, and local offices than we have been in winning national elections.
If you want to tilt the convention away from your political enemies, it won’t work. Like it or not, people of all views will be represented, and their views may be in diametric opposition to your own. It will be necessary for the states to request a general convention if the goal is to move forward with Levin’s proposals, and you can be sure that some delegate from New York will introduce an amendment that would repeal the 2nd Amendment. You can take that to the bank. Will it survive a convention and be passed on to the states for ratification? I doubt it. But you have to be prepared at a general convention for everyone, Left and Right, to put their cards on the table and propose amendments that you will and will not like.
Of course, selection of delegates for the convention to propose amendments (as distinguished from state conventions to ratify or reject amendments once proposed) cuts both ways even if they are selected on a population basis rather than on the basis of winner takes all control of the state vote. That is because even in Massachusetts and even in California there remain pockets of sanity which elect conservatives. Indeed, even New York City elected Mayor Giuliani. So the arithmetic becomes very important but so does the process by which the delegates to the convention are selected. Are they to be selected by the legislature, by the legislature with approval of the governor, or by general plebiscite on the basis of one man one vote? If one man one vote, does the would be delegate run statewide or according to a legislative district?
There’s the nub of the argument. The ALEC Document believes that state legislatures would appoint delegates and have the authority to instruct them in their duties. The ABA Report believes that Reynolds would apply, and delegates would be elected by the people according to a model similar to the House of Representatives. The ABA Report also believes that Congress has wide latitude, granted by Dillon v. Gloss and Coleman v. Miller to regulate all facets of the amendatory process provided that regulation does not explicitly contravene the words of Article V. In the end, Congress will legislate this, one or more states will challenge Congress in federal court, and the Supreme Court will decide if Congress has overstepped its bounds.
It is also possible that, even though the delegates are elected on a one man one vote method, their vote nevertheless will not be tossed into a pool of all delegates at the national convention to propose amendments but will be counted on winner take all basis to determine how their home state will be voting. We just don't know at this point.
True. As I said in the last sentence of my previous response, Congress legislates, the states challenge, and the Court decides. The final decision may not be something you like.
As you can see, the permutations and combinations go on and on and there is no definitive answer forthcoming from the wording of the Constitution. There is guidance in both directions from the Federalist papers, from the history of the constitutional convention, from Supreme Court cases, and from the history of state conventions which have occurred but an agile lawyer will find ammunition on both sides of virtually every issue.
True.
In this uncharted territory the question becomes not only what is required but who determines what shall be required. Much like the appointment of a Supreme Court Justice, once that is done all cases coming before the court are predictable-providing always but that justice being confirmed is a leftist. So the question arises who applies to the United States Congress to call the convention? It is a pretty good guess that that would be the state legislatures. If they do not propose amendments in identical language, is the door is open for Congress to deny the applications if the requisite 34 states have not made identical applications? Assuming that the state legislatures can be coordinated (a very large assumption), or at least 34 of them can be coordinated, and a coherent and parallel set of proposals of amendments are submitted to Congress, the question arises what to do about Harry Reid if he simply, flatly refuses to act? The Constitution does not tell us it merely says that the obligation of Congress to act is obligatory, the operative word in the Constitution is "shall." But it does not provide a remedy for Harry Reid's recalcitrance.
The ABA Report covers this in detail. Congress can put a whole lot of obstacles in the way of an Amendments Convention. It can look at minute matters of punctuation and language to justify a decision that the two-thirds threshold has not been reached. This is why it suggests that each state submit its petition by enumerating the other states that have submitted similar petitions. This forces Congress to tabulate the petitions in the correct column. This is to protect the states, not Congress.
The issue of whether Congress would honor the petitions or ignore them is valid. In Federalist #85, Hamilton said that Congress had no discretion in the matter. It was obliged to set and time and place for the convention, a purely ministerial function.
But let’s go back to 1967. Thanks to the hard work of Sen. Everett Dirksen of Illinois, we were almost at the two-thirds threshold for a convention to repeal the Supreme Court’s Reynolds decision. Dirksen introduced a bill to regulate the conduct of a convention. All hell broke loose on the floor of the Senate because Congress had been blind-sided by the states.
Two senators from Maryland (Tydings and Brewster) argued that the petitions to overturn Reynolds had come from legislatures that were mal-apportioned by the standards of Reynolds, and thus Congress could safely ignore those petitions. (Both senators later went to prison.) The junior senator from Illinois (Percy) argued that an Amendments Convention would place the Constitution in the hands of the worst and most extreme elements in American politics, by which he meant conservatives. He feared a “runaway” convention. He thus argued that Congress could ignore petitions for a convention, and nobody could do anything about it because Congress was a sovereign body and the courts could not order it about.
But that was before the Powell decision. Remember Adam Clayton Powell? He was the sleezeball congressman from Harlem whom the House refused to seat. Powell sued in federal court arguing that he had fulfilled all the necessary requirements to be elected to the House. If the House chose to expel him by a two-thirds majority, that was fine, but the House had to seat him first.
Various congressional barons made statements that the Supreme Court should not get involved because redress for Powell would mean the Court ordering the House about as though it were not a sovereign body. The Court eventually decided in favor of Powell, and the House did not impeach the justices who voted for Powell. For the first time, the Supreme Court had ordered the House about as a lackey. After Powell, Chuck Percy was wrong. In the end, Powell was defeated in a later primary by Charlie Rangel, who still holds the seat today, but the precedent was set.
If Congress refused to do its duty, could the Supreme Court intervene? Yes. Would it? That’s hard to say. John Roberts is not Earl Warren (thank God!).
Could the Supreme Court call a convention on its own authority if Congress defied the states? I doubt it. Earl Warren might have tried something like this, but not Roberts.
Could Congress dodge the issue by calling a convention 20 years in the future? Legally, yes, but that would defy the states as surely as if Congress had refused to call one at all.
Could Congress refuse to appropriate money for a convention? Yes, and that would throw the financing into the hands of the states. The Walker brief had a splendid idea to get around all this. He suggested holding a virtual Amendments Convention on the Internet, which would cost a pittance.
Incidentally, there is no requirement In Article V that the states propose amendments, only that they apply for convention to propose amendments. So the requirement for the states to propose coordinated amendments is something which does not appear in the Constitution, but which has been claimed by Congress, and would, of course, be claimed again by Harry Reid. Who's to say what is required?
There is no requirement that an Amendments Convention pass even one amendment proposal on to the states for ratification. If the convention is badly split, it could be a waste of time, except for one thing. We would have precedent in concrete as to how delegates are chosen and how a convention is conducted. The gray areas would all be filled in. People would no longer be afraid of an Amendments Convention. A future convention would avoid the pitfalls of the first one.
If Congress does not do its duty, to whom do the aggrieved states have resort? Do they go to the Supreme Court which is likely to call this a political question rather than a justiciable question? Do conservatives want to open the door to supervision by the Supreme Court an endless rounds of the litigation?
If Congress defies the states, the Supreme Court may suggest that it is up to the people to remove those members of Congress who stood in the way of a convention via the electoral process.
Do the aggrieved states conduct a convention without the imprimatur of the United States Congress? If they have 34 states can they go ahead?
If the states attempt to call a convention without the imprimatur of Congress, that convention is invalid. It would even be construed as treasonous.
In 1815, when the New England states gathered in convention in Hartford to discuss secession during the War of 1812, President Madison sent the Army into Hartford. No arrests were made and the convention was not broken up, but Madison made it clear he was watching. When the Hartford Convention sent an embassy to Madison to treat with him, he refused to meet with it.
Can every stage of this proceeding be delayed by suits through the federal judiciary system which take years to resolve while sentiment changes? Assuming Congress it does call a national convention, what happens if Congress sets terms and conditions of its own making out of thin air without authorization in the Constitution? For example, suppose Congress imposes a time limit, suppose Congress sets quorum requirements, requirements for the certification of delegates, rules respecting the procedural conduct of the convention, winner take all vs. one man one vote?
According to the ABA Report, Congress possesses all those powers and may chose to execute them.
The ABA Report represents the thoughts of the ruling class 40 years ago. It’s called the “ruling class” for a reason: It rules! Congress and the ruling class it represents will not take kindly to having its powers taken from them by the States Assembled in Convention. They will put every obstacle in the way of an Amendments Convention you can imagine. Only if the states and people persevere can that convention be held and accomplish its aims.
This will not be an easy path.
Ugh,....where to start with you?
> “We already have a Constitution. So? How well is that respected by the Marxists and their Useful Idiots the Dems/libs/leftist/socialist/greenies/ Progs?”
They respect it enough to plot ways around it. If they didn’t respect it at all they would do like Morsi did in Egypt and just suspend it and pass a new one. The only reason they respect it at all is because they don’t hold all the cards....yet. And here the word ‘respect’ doesn’t mean ‘honor’ or ‘admire’, it means the courts can still rule against them and the courts are backed by marshals with guns.
They also ‘respect’ the American people, not honor or admire the American people, but respect them because the people have guns.
The short version is the hard left respects guns.
> “Levin’s idea is like walking into a meeting with the mafia and saying, “Here are new laws to keep you in line.” Imagine the snarky laughter.”
Here’s what you have to understand.....Levin is not walking into any meeting, he is putting it out there for education. The conservative majority will absorb this Article V tool and they will use it. If your mafia responds with snarky laughter, then they will have some pissed off Americans who will first come at them with sheriffs and lawyers, and then marshals and then guns. Ask the real mafia if they want to risk that scenario and they will tell you forgetaboutit.
> “Fundamentally, we do NOT have a constitutional problem. We have a problem with the HEARTS of the citizens of this nation! No number of amendments, constitutions, or laws will corral evil if the hearts of the people are grounded in morality, honesty, and the good will to make a republic work.”
The conservative majority is still in place and is just waiting for the right leadership. The morality is still there, the heart is still there, it is watching and waiting. Timing is everything.
> “And...Remember. Levin is the guy who **KNOWS** that Obama fails e-verify, has posted forged birth documents, is using another man’s social security number, and even stated on the jacket of his autobiography that he was born in Kenya. Levin has been completely SILENT on this likely abuse of our EXISTING Article 2, Section 1, and he believes he can perfect our existing Constitution. Really? Seriously?
Levin has said the Article V movement will take time and he is not leading it, he is educating conservatives as to how it works and he is giving some ideas and amendments for debate. He knows the American people will use Article V to put Congress on notice. Article V was used in the 17th Amendment and Congress reacted with a ‘Holy Sh*t! They’re serious!’ and took it back into chambers so that they could control it. I fully expect Congress to do the same this go round by responding along the lines of “Ok we see you are serious, we’ll do something and get back to you”. Don’t let them do this! Tell them to go F themselves while we get our conventions going.
Well....Ok! You have changed my mind. Seriously, I mean it.
Let’s see what happens.
You are so right. I can't stand it, but they are here.
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