Posted on 11/29/2014 1:54:39 AM PST by Jacquerie
Under pressure from the base, republicans in congress are scrambling to deal with Obama’s latest high crime. Rest assured whatever the GOP does will be designed to minimize electoral threats to their reelection in 2016, and ignore the well-being of our republic. Perhaps they will cut funding to that which they never appropriated funds in the first place. How about a lawsuit? Impeach? Forget it. Whatever they do will not deal with the tyranny, the precedent of executive law making that will endure after 2016 for the next president to exploit.
The framers gave us legal, constitutional means to deal with tyranny. Part V continues to examine the history of a never implemented clause in the constitution, a state convention to propose structural amendments to the constitution.
42. The 1787 framers of the constitution were careful wordsmiths. Almost every clause is the result of several committee reviews and reflect an intent to set up an innovative republican government.
It is the very simplicity of Article V which prompts any reader to immediately wonder, like James Madison, ‘How was a convention to be formed?’ ‘By what rules, etc.’ Despite Madison’s questions, the convention chose to leave the matter open to delegates of future conventions. The framers’ deliberate decision to leave future conventions vague cannot be construed as a grant of authority to congress or courts to control the conventions. IOW, while the particulars of state delegate duties are general and little defined, the duty of congress is specific and well defined. Congress and the courts cannot expand the ministerial duty of congress beyond that role under the pretext of “filling in the details.”
Should congress or the states count the requisite number of state applications? It isn’t clear, but since it is the duty of congress to call the convention, it could be argued that congress is responsible to count state applications. Regardless of which institution does the counting, the counting must be done. However, if congress is permitted to determine what is and what is not an application, the potential exists for congress to abuse that authority and unconstitutionally avoid its duty to call a convention.
43. While the framers couldn’t specifically foresee the 17th amendment, they knew the historic life cycle of republics. It is unfortunate they granted congress the power they did in Article V.
Whatever the application counting role of congress, congress has neither the power to limit the subject matter of a convention for proposing amendments, nor the right to limit the convention to a narrow issue. As discussed earlier, the federal convention specifically deleted reference to a single amendment on a single issue. This deliberate change is reflected in Article V and must be given substance. Congress/courts have no authority to alter or limit that power.
Nor does the plain language of Article V empower congress/courts to limit the form of state applications by topic or time limit. The whole reason for the convention method was to give the states the ability to circumvent a recalcitrant or unresponsive congress. Any construction of Article V that gives congress the ability to limit or defeat the application process is plainly incorrect. The only conclusion that can be drawn from the history of Article V is that congress has no authority to involve itself in any way in the operation of a convention for proposing amendments once it has been called.
Matters such as where the convention will meet, who shall chair it, how voting by delegates will be conducted, and what matters the convention will consider are all beyond the authority of congress.
As Alexander Hamilton wrote in Federalist 85, once congress has called a convention it has no further role until the convention has finished its work and proposed one or more amendments.
Nov 27
How the GOP Wave Could Boost Chances for a Constitutional Convention of the States
I read the link. Thank you.
Once 34 states have applied, regardless of the reason, congress is constitutionally required to call a convention.
Over 34 have applied.
Rather than run from danger run to safety.
Will the GOP controlled Congress call for the Convention after counting the State approvals? Was I too optimistic in the law-abiding nature of the Federal GOP? Can the State go around this and call and meet in their own convention, if the Congress ignores the Article V Convention?
I regard congress’ neglect to call a convention, for lack of a better term, a silent constitutional crisis.
Mark Levin will speak to ALEC on Thursday. I hope it is available live or on youtube afterward, for I'm certain he will read them the riot act over not doing their duty to demand a convention.
As for going around congress, it is the natural right of a sovereign people to change their government. The Left has been doing it illegally by degrees for a hundred years. It is past time for us to make it happen.
Whatever the application counting role of congress, congress has neither the power to limit the subject matter of a convention for proposing amendments, nor the right to limit the convention to a narrow issue.
Very true. It is the states who generate the petitions. It is the states who generate the desired subject, and place it within the petition. It is the job of Congress merely to tabulate, that is, to be secretarial or ministerial in function. If the petitions with a subject(s) named by the states reach the two-thirds threshold, it is the job of Congress to copy that language into the convention call when it sets the date and place for the convention. This is how the states set the agenda.
Nor does the plain language of Article V empower congress/courts to limit the form of state applications by topic or time limit.
True, the topic is determined by the states.
However, the issue of timeliness is a gray area, as listed by the ABA Report. The ABA got it right. Let me give you an example.
Back in the 19th Century, polygamy was a hot topic when Deseret (Utah) asked to be admitted to the Union. States petitioned for a convention for an amendment to ban polygamy, but the issue became moot when the Mormons banned polygamy themselves. Utah was then admitted.
Let's say that polygamy again becomes a hot topic in conjunction with other "irregularities" around marriage. Let's say that states begin petitioning for a convention on polygamy. Should the petitions from the 19th Century be counted as still valid?
According to Dr. Natelson in the ALEC Document, yes. As he sees it, just as ratifications are forever, so are petitions for a convention.
According to the ABA Document, no. The petitions may have the same language, but they were generated for a completely different reason in a completely different time period.
Simply as a point of legal logic, I would side with the ABA on this one, as does Congress.
The problem is that the opinion of the two authors of this article is at variance with Congress and longstanding congressional practice. Their opinion is at variance with the federal courts. Most importantly, their opinion is at variance with the state attorneys general who could go to federal court at any time to get a definitive reading on this that would be in agreement with the two authors. Your authors have a minority opinion in this case.
Don't be too impressed with the conclusions of Natelson or the ABA. I've read several papers by Natelson and found them informative. However, he is wrong as to single subject applications. I have no regard for the ABA. I am not starstruck by either.
BTW, states do not petition. Subjects petitioned George III. A supplicant petitions a higher power. To say the states petition is to render them subservient status, as if they ask congress for favors.
Our Framers were precise wordsmiths. The iterations of what became Article V dealt with your "gray" areas. See Part I of post #30. James Madison in Federalist 43, and a man you detest, Alexander Hamilton, wrote in support of equal state/congressional ability to propose amendments in Federalist 85.
The Framers purposely set a moderate threshold for the states to meet in convention (Federalist 43). Over two thirds have made applications. They should convene. If their reasons for meeting are too diverse, then the conventions won't have any amendments to pass on to the states. What is the problem with that? None.
Getting three fourths of the states to ratify amendments was designed to be much more difficult, yet not so tough as Article XIII of the Confederation. For practical purposes we are at that point in the Confederation, being stuck with an unamendable form of government, this time by those who profit so well from it.
At this moment, our once servants, now masters in Imperial Washington deny us our God given and constitutional right to frame our government. No amount of slick lawyering over 200 years later can change the historical record.
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