Posted on 07/01/2015 3:56:31 PM PDT by betty boop
Do We the People Need an Article V Convention of the States in the Aftermath of Obergefell?
The short answer to the title question would seem to be: Very likely YES. And that for a number of reasons.
First, Congress has been utterly derelict in executing its constitutional powers designed to constrain excesses emanating from the Supreme Court. There are three constitutional legislative “checks” on SCOTUS — or any other federal court. Other than the Article III Supreme Court, Congress is the creator of all the other federal courts — and all are firmly within its lawful legislative power in certain vital ways — most importantly including the Supreme Court itself.
(1) The first is the power of Impeachment. Supreme Court justices have lifetime appointments, subject only to “good behavior.” If a justice behaves badly, he or she should be impeached. Arguably, several sitting justices have behaved rather badly in the Obergefell case. Two justices had been asked, in an amicus curie brief, to recuse themselves from this case on grounds that they had a preexisting personal stake in its outcome: Both Justice Ginsberg and Justice Sotomayor had already conducted several gay marriages. Both refused.
We won't even get into the matter of Justice Kennedy, who evidently considers himself as the "swing vote" on the current Court. In such way he manages to elevate himself above the other oligarchs on this Court. So we not only have the horror of a "tyranny by oligarchy" of nine black-robed unelected and unaccountable judges who will tell us what our Constitution means by simple majority vote; but HE is the single vote that will carry the day on any given question. Under the circumstances, he is not just one among the other oligarchs; he is the sole archon who determines what our constitutional order actually IS.
(2) The second is the constitutional power of Congress (Article III, Section 2) to “regulate” the Supreme Court. Bear in mind such regulation cannot reverse any Supreme Court decision already made. However, though
A legislature, without exceeding its province, cannot reverse a [SCOTUS or any other federal court] determination once made in a particular case; … it may prescribe a new rule for future cases. — Alexander Hamilton, Federalist No. 81. Emphasis added.
Which entails that Obergefell is indeed now the law of the land. But Obergefell is just the opening salvo of much more to come respecting the issue of marriage. And so much more is at stake, preeminently religious liberty.
Congress — that is to say, the House of Representatives — has the constitutional power to instruct the Court, going forward, that it has no authority to adjudicate issues regarding marriage, perhaps further stating that the original design of the Constitution contemplated that marriage issues lay firmly within the jurisdiction of the several States — not least because the ratifying States at no time contemplated, nor conceded the regulation of marriage to the national government. The regulation of marriage was a retained power, not a delegated one. Congress could simply instruct SCOTUS that it has no jurisdiction in this matter. On my understanding, this could be done on the basis of a simple majority vote, one that is constitutionally immune from presidential veto.
(3) The third is Congress’s power of the purse. Congress controls the salaries paid to federal officials, elected and appointed. In the case of the Supreme Court, Congress cannot cut their pay, certainly not on an ad hominum basis, nor abolish it altogether. But unlike pay for the President, which cannot be either reduced or increased in any way during any chief executive’s tenure in office (and thanks to Amendment XXVII, the same applies to Congress), though Congress is constitutionally forbidden from reducing compensation to members of the federal judiciary, it can definitely deny any future increase in their pay. The saliency here derives from the fact that federal judges and Supreme Court justices have lifetime appointments (subject only to good behavior). The rising cost of living inevitably will take its toll on their salaries. To Ruth Bader Ginsberg, at age 82, this may not be much of a concern. She’ll be retiring sooner or later; we just don’t know exactly when or the cause of her retirement at this point. But for the youngsters on the Court — Sotomayor and Kagan, for example — such a pay freeze would take its toll over time. Plus meanwhile, you’d have to freeze the pay of every other federal and Supreme Court justice commensurately in order to strike out at the miscreants. It wouldn’t surprise me to see a good deal of pushback from the ranks of the judiciary at all levels for judicial decisions made (on the basis of ideology, not constitutional construction) that imperil their own future financial well-being.
Need I say that Congress has done none of these things? Even though their own constitutional authority and powers are tacitly sacrificed, surrendered, on the alter of judicial activism by their lack of action with respect to the exercise of the duties plainly put on them by the language of the Constitution itself?
Given that Congress is evidently supine in the face of egregious attacks on its own institutional privileges and constitutional authority, and is so willing to “compromise” with the Spirit of the Age; to say, “hey, it’s the law, so let’s just move on,” I think it’s fair to say that these most direct representatives of We the People are not doing their job. Since the only way we have to “fire” such folks is through the electoral process; and via that process, they manage to get reelected almost always anyway; and since these agents of the sovereignty of the People are doing such an execrable job in standing up for the liberty of the People — which is the whole point of the Constitution — We the People have to take matters into our own hands, via Article V.
The Article V Convention of the States approach has never been taken before in American history. All the Amendments we have — all 27 of them — were proposed, deliberated, and produced by Congress, and then submitted to the several states for ratification.
The “Convention of the States” approach to Article V constitutional amendment has no precedent in American history. So I ask, what could go wrong with that, when it is finally tried?
Given that the firmly ensconsed “powers that be” can be expected to be highly reluctant to having their powers curtailed, they — that is, Congress, the mediating body of whichever method of Amendment is proposed — might think they have some kind of discretion respecting what sorts of amendments can be entertained. I was very grateful to learn, from Federalist No. 85 (Hamilton) that, respecting the constitutional amendment process,
Every Constitution for the United States must inevitably consist of a great variety of particulars in which [the then] thirteen independent States are to be accommodated in their interests or opinions of interest…. [I]t has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they once possessed…. I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers. [Emphasis added.]
Which is to say, one cannot amend the original Constitution in such a way as to increase the original powers of the national government. Since the original powers of the federal Constitution did not include the surrender of the power of the several States to federal adjudication of marriage issues, the Obergefell decision ought to be regarded as a nullity right out of the gate.
Obviously, that has not happened. At least, not yet.
But if our “servants,” Congress, will not act, I guess it’s up to We the People to act — the People being the lawful principals here, in recognition of the constitutional fact that Congress is merely their agent carrying out a very narrow range of delegated powers, restricted to the warrants granted in Article I, section 8; in recognition that the defense of individual liberty of the citizens of the United States is the “prime directive” of all just government. There are two ways they can do that: Constitutional amendment or outright civil war.
Since we do not have any precedent for a Constitutional Convention of the States under Article V, I have no clue how that might turn out, or what obstructions Congress itself might raise against it. If the articles contained in the Applications of the 67 States have the effect of limiting any existing powers as they are now exerted, perhaps there is no friend to be found in the authorizing body, Congress.
But then I was very happy to learn that (at least this was the original understanding and intent of the Framers), if 67 States make such Application, Congress MUST comply. There is no lawful way for it to do otherwise: It MUST establish a Convention of the States.
Actually passing an Amendment is a bit more tricky. You only need 67 States to advance it; but you need 75 States to ratify it. Some States — my own included — are wallowing in such thoroughgoing political corruption that you can never depend on them to “do the right thing.”
Another relevant issue is, one cannot convene a “generic” Convention of the States: It must declare what are the specific objects it has in view that need amending.
For those of us still agonizing over the Obergefell decision, a constitutional amendment defining marriage exclusively as the union of a man and a woman, having full effect in law, will be paramount.
However, in the States’ bills of Application, I would strongly urge the desperate need for another Amendment besides: Repeal of the 17th Amendment.
The 17th Amendment completely changed the very architecture of the original Constitutional framework, right down to the bedrock of the separation and balance of powers in our political system. It one swell foop, it deprived States per se of representation in the national legislature. Thus the natural defenders of the Tenth Amendment were expelled, deprived of representation in that body.
We do indeed “live in interesting times.” All I can recommend is to understand the nature of the political order into which you were born, which is the best specification for the flourishing of human liberty in the history of the world; stand up for what you believe; pray constantly; and leave the rest up to our Lord….
Yep. Well said. Somehow we need to persuade and influence “we the people” to vote for responsible governance. This will allow responsible conservatives to get elected instead of pandering RINOs and liberals. Without power and influence in the states and federal government conservatives don’t have much except a dream. And maybe that is enough for some people around here.
One can learn from the left’s tactics and strategies. They took over the educational systems and the MSM and slowly indoctrinated millions. We have to tackle root causes to persuade voters to our way of thinking. This will take a long time. The left is patient and understands this. So must we.
....”Like a homosexual drag queen who puts on makeup, a dress and high heels pretending to be a woman, what we have today is tyranny in the drag of a republic. All of our institutions in DC have been corrupted into forms that work to purposes that are opposite of their constitutional designs. Congress hardly legislates at all, while the executive and judiciary wallow in arbitrary unconstitutional lawmaking”...........................”It is silly to fear the outcome of an amendments convention when... REAL TYRANNY IS HERE.”
Saying it like it is! Bravo!
....”Like a homosexual drag queen who puts on makeup, a dress and high heels pretending to be a woman, what we have today is tyranny in the drag of a republic. All of our institutions in DC have been corrupted into forms that work to purposes that are opposite of their constitutional designs. Congress hardly legislates at all, while the executive and judiciary wallow in arbitrary unconstitutional lawmaking”...........................”It is silly to fear the outcome of an amendments convention when... REAL TYRANNY IS HERE.”
Saying it like it is! Bravo!
Plato referred to tiny city-states. John Adams expounded on the necessity of republican virtue, yet also knew very well the problems associated with total reliance on virtue across an expansive territory to secure freedom. It didn't work. It was that very problem, the reliance on virtue alone that lead to rewrites of state constitutions in the mid-1780s and the combined federal/democratic constitution to replace the Articles of Confederation in 1787.
I haven't studied Adams' Defense of the Constitutions of the United States but IIRC he so much as determined that mixed government in the form of the British Constitution was the theoretical best structure. It is why the book fell fairly flat in 1787.
America didn't have the three formal, hierarchical estates of British society. Every man is born equal to another in a republic. So the problem was how to give voice to the people yet prevent them from slitting each other's throats. The answer was to be found in a complex plan of government that famously divided power between the states and the government they created.
Back in the 1780s those stupid, breeches clad, slave owning white dudes recognized the shortcomings of an only six year old confederacy and sought to correct them. Contrast that to America 2015 that is too smart to correct the horrible mistake of the 17th Amendment. We'll bring back booze, but not a federal government.
Because Obergefell redefined a word that has had consistent meaning for over 4 millennia. Explanation:
Gay activists claim that they are denied equal protection under the law to "marry." They piously invoke the Fourteenth Amendment to gain such "equal protection."
But it seems crystal-clear to me that gays have never been denied the "right" to marry (not that marriage is a federal concern in the first place; but leave that aside for now). They just choose not to do so, because they don't like the definition of marriage — universally understood as the lifetime, exclusive union of one man and one woman for the purpose of propagating and rearing offspring.
What Obergefell did was to redefine what the word "marriage" means. Now, it's just all about erotic love, period.
But any word has a meaning that cannot be gratuitously changed at the drop of a hat, just to placate disgruntled people. Certainly SCOTUS has no power to change the meaning of words. But that, to me, is the prime effect of Obergefell.
You start attacking words, language itself, then pretty soon, you get a Tower of Babel situation, in which people are no longer able to communicate with one another, or understand one another.
So yeah, this decision really did "push me over the edge." WORDS are not subject to judicial review.
CA only passed prop. 8 by 52% in 2008. Before that, they voted in prop. 22 by 61% in 2000. CA voters lost 9% in 8 years on the issue of ‘gay marriage.’ The states that only passed their marriage amendments in the 50-60% ranges in the middle of the last decade probably couldn’t pass them again now. If that trend remains consistent, in 15-20 years even the state that passed their amendments in the 70-80% ranges couldn’t pass them again.
Freegards
I wouldn’t say that Obergefell pushed me over the edge toward an Article V convention. That really was just a realization that our only play left is a hail mary pass. (Maybe we need Doug Flutie in office.)
Article V can likely be controlled through the 3/4th requirement for any amendment to be adopted. If the convention comes out with anything unacceptable, then finding 13 states to oppose it is not an insurmountable task.
And if it is so infested with the fascists that even that is impossible, then we’re already that infested with fascists, so it really isn’t an issue.
When families discover bedbugs in their car, they really should admit that their house is already infested.
I still have not mastered this distinction, Publius. I suspect I am not alone in this.
So I will now go and study the links that you and xzins have so kindly provided.
Thank you so very much for writing!
You are correct. It’s the third series of events.
I hope that we don't have to vote from the roof tops.
5.56mm
5.56mm
A Convention of the States, also referred to as an Amendments Convention, an Article V Convention or (for the purpose of striking fear into people's hearts) a Constitutional Convention, is part of the Proposal function.
State ratifying conventions are part of the Ratification function.
Congress itself is in control of the Disposal function.
You are correct that the three fourths requirement for ratification is the "safety valve" of this series of events.
"It is silly to fear the outcome of an amendments convention when REAL TYRANNY IS HERE."
For those who think the Article V process is too risky, I ask, "What other options do you see?"
To summarize from a previous post by GraceG:
1. Elect More Republicans - Failed due to RINO/Uni-party confluence.
2. Article V Convention of States to propose Amendments - Needed to try to take power from the federal government back to the states and reel in the federal leviathan.
3. State Nullification - Last ditch effort to try to take power back from the federal monster, though by this point it may be too late.
4. State Secession - Could either end up peaceably like the breakup of the Czechoslovakia in 1993 or a brutal:
5. Civil War II like the first one.... The longer we wait on #2, the more likely #3, then #4 and finally #5. .
So, do we do nothing and just wait for # 5?
Quick review: We need 34 states to pass an application, then Congress shall, by law, call a Convention of States as soon as it receives applications from 2/3 of the State Legislatures. That's 34 states. (So far both legislative chambers of 4 States, {Alabama, Alaska, Florida and Georgia}, have completely passed their resolutions and 36 state legislative chambers or bodies have filed or passed resolutions.) Amendments are proposed and voted on at the convention. Each Amendment must be ratified by ¾ of the states in order to become part of the US Constitution. That’s 38 states.
“There are far more political and legal constraints on a runaway convention than on a runaway Congress.” - Robert Natelson
Most FReepers are aware of these links, but I post anyway for review and for people new to Article V. It is our responsibility to make Article V the most understood aspect of the US Constitution.
****Please see this summary video from Alabama first: Convention of States - Alabama Way to go Alabama! A great introduction!
Rep. Bill Taylor introduces a Convention of States
Convention of States Live! with Mike Farris
The Case for an Article V Convention. Great explanation of an Article V convention to the Massachusetts State Legislature.
**** Convention of States Lots of information here.
Call a Convention A call for a Convention of States
Missouri state senator delivers amazing testimony (video) Reasoned speech on why we need an Article V Convention.
Article V Project to Restore Liberty Another good source.
Convention of States model Resolution
A Summary of Mark Levin’s Proposed Amendments by Jacquerie
Chapter 1 of Mark Levin’s Book, The Liberty Amendments
Mark Levin, Constitution Article V, and the Liberty Amendments
Mark Levin: “The Liberty Amendments” - Complete Sean Hannity Special + other Links
List of Mark Levin You Tube Videos
Citizens for Self-Governance: Convention of States Project Youtube hub – Lots of educational videos here
Mark Levin Article V, Liberty Amendments youtube video hub
Three hour video of C-Span interview with Mark Levin
*** Mark Levin’s ALEC Speech, Dec 4, 2014
Gaining Steam? Nearly 100 Lawmakers Descend on Mount Vernon to Talk Convention of States The beginning.
Mark Levin’s “Liberty Amendments” Sean Hannity Special
We can fight the uniparty! States, the Natural Second Party by Jacquerie
Convention to Propose Amendments to the United States Constitution
The Other Way to Amend the Constitution: The Article V Constitutional Convention Amendment Process
Friends of Article V Convention Links
The Indiana Statute that will Govern their Delegates
Congress’ Present Duty to Call a Convention:
Congress’ Present Duty to Call a Convention. (Part I)
Congress’ Present Duty to Call a convention. (Part II)
Congress’ Present Duty to Call a Convention. (Part III)
Congress’ Present Duty to Call a Convention. (Part IV)
Congress’ Present Duty to Call a Convention. (Part V)
Congress’ Failure to Call an Amendments Convention. (Part VI)
Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment by Jay Bybee. Repeal the 17th! Shorter Abstract here: Ulysses at the Mast, one page Abstract
****For those of you that still have doubts about the Article V process, please review: Responses To Convention Of States Opposition My initial concerns were resolved after reading these articles. My attitude now is Go For It!
Sarah Palin: Debunking the myths of a Convention of States
A Single-Subject Convention Addresses the “runaway convention” fear.
John Birch Society Denies Its History and Betrays Its Mission The original Birchers were for an Article V Convention.
Update: Convention of States by the numbers The current State count
Convention of States Gaining Momentum
Article V Handbook - for State Legislators An important resource.
**** State Legislators Article V Caucus State Legislators, Join up at this site!
Most State Legislatures are in session now. Send this list of links to your State Representatives and Senators here: Contact your State Legislators.
Sample Letter to state Representatives regarding the Convention of States Project and also, Talking Points.
Excellent Article V Letter to a State Assemblyman by Jacquerie
"All that is necessary for the triumph of evil is that good men do nothing." - Edmund Burke.
Let’s all work together to get this going!
THAT is precisely the goal of the Left. There is no greater enemy of republics than diversity.
One of the first objections by Anti-Federalists involved the impossibility of an extensive republic. The Roman republic began its fall into despotism when its territory extended beyond the republican capabilities of its institutions. Too many different peoples contributed too many conflicting voices. In the 1780s all large countries were despotic. Russia, China, the Turkish empire were horrid tyrannies. The only existing republics back then were small city states.
So the question was, how could the freedom that was bought with so many lives in our Revolutionary War be secured across not only the Atlantic seaboard but hundreds of miles inland, and perhaps across the continent?
The answer was to give voice to the various factions that were expected to emerge as Americans spread west. By creating a republic composed of smaller republics the people could express their will in communities far smaller and more responsive than faraway Washington DC.
What Scotus delivered last week to our former republic was despotism. Like Russian Czars, Turkish Sultans who issued decrees backed with bayonets, the American republic has been transformed into a top-down empire in which the once sovereign states exist to carry out their master's commands.
The Left creates nothing. It can only destroy.
I believe it wouldn’t be a revolt rather a restoration of constitutional law. You are correct about the dim’s. The left is and always has been killers. I have seen numerous scientists statements saying 550 million people are “sustainable”. The book of Revelation population die off brings the world to about 1/8 of the current population. It will be an awful mess if/when it starts. Slaughter on an unimaginable scale. Let’s hope we head this evil off but I don’t believe we will be able to. Have a great Independence Day Hosepipe.
Knowing this short attention span, I ask all Article V opponents to at least read Art's link to the single page abstract of Ulysses at the Mast, Democracy, Federalism, and the Siren Song of the 17th Amendment.
What must be done . . . must be done.
Article V before we can't.
I have never read an explanation from the “rebellion first” crowd what is to be left after their work is done.
I have never read an explanation from the “rebellion first” crowd what is to be left after their work is done.
A vestige, semblance, version of FREEDOM..
Some sheep prefer the sheep pen others prefer open fields of grace..
https://www.youtube.com/watch?v=QMsa1eRsfuw
I hope that we don’t have to vote from the roof tops.
It’s not him who votes but him who counts the votes- Joe Stalin..
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