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….
Yeah, saw that before.
Phyllis is a Beltway insider and like all Beltway insiders she feels threatened by state legislators getting in the driver’s seat. It’s a foreign concept to her. It’s out of her comfort zone.
She may be coming around by now or she’ll have to eventually.
Today’s Article V movement is fairly new by a few years but it is not reacting to anything new. It’s reacting to things evolving since 1913 which we can call the dawn of the Progressive Era.
I would take an iPad or tablet to that diner where those little ladies are seated and I would excuse myself for interrupting, introduce myself and politely ask if they would watch the following Mark Levin video at time 28:10 to 33:45:
https://www.youtube.com/watch?v=tdZuV8JnvvA
Of course they should listen to the whole thing but for the 5 minute clip above I might even offer to buy their meal if they would listen!
C’mon Hostage. Chill.
I explained in my next sentence, “What should happen is at least 34 states should convene NOW, without waiting forever for a corrupt congress that will never call them to it.”
That's how I understand the argument. The late "Congressman Billybob" explained the Single Subject Standard for tabulation as a part of contract law, the COS being the agent of the states who are the principals. An agent cannot go beyond the agency agreement that he and his principals agree on. He also said that the Single Subject Standard predated the Constitution, going back to basic principles of English Common Law.
As such, I've accepted the Single Subject Standard for convention applications from the states, as does Natelson. Walker's suit failed for lack of standing and futility. My guess would be that only a state could argue Walker's conclusions in federal court.
The Constitution is very clear “Congress shall call a Convention”.
If Congress does not do that, then states will have to go to court.
But this discussion is not realistic.
All of the proposed amendments by at least 34 states WILL HAVE THE SAME CORE LANGUAGE, so there will be no failure to call a convention by Congress or ordered by a Court. A failure to do so WILL NOT HAPPEN.
There is interpretation of documents and then there is reality.
According to your summation of Jacquerie’s view above, Congress should have called a COS more than a century ago.
The reality is they didn’t.
The reality going forward is they’re not going to.
This is all about appearances. State legislators are hearing from their constituents that something must be done about the out of control federal judiciary. Liberals are pleased; Conservatives are pissed. Congress is impotent. That leaves only the states to do something and they have only Article V which they started decades long ago but never completed. So it’s still a ‘new thing’, a novelty with no impacting history.
Most Americans want a divorce from their abusive federal government. Right now states are like a group of prospective divorce lawyers. They better know what they are doing.
What 1973 ABA report?
Pinging the SCOTUS list to a most informative and timely guide (link at #156) to an Article V convention of states.
Many of us who wade through SCOTUS opinions will do the same here. Enjoy!
I hope your Independence Day was wonderful.
FRegards,
BT
Ugh. Link at 155.
Lol. Seriously? That's just crazy talk. If you can't enforce what you have, don't expect to enforce whatever it is you add or change.
Thanks Publius. I just downloaded the new Natelson document.
Thank you!
Thanks for the ping
I really don't see how applications from the several States to the U.S. Congress for the calling of a Constitutional Convention to Propose Amendments could advance on the basis of such squishy logical grounds as "curbing the overreach and jurisdiction of federal government power."
That looks to me like a prescription for a "runaway Convention," assuming Congress would even accept any State Application like that, which is highly dubious.
Given the above reflections/considerations, dear Hostage, I must tell you that I find great merit in your proposal that the Applications from the several States to Congress for the mandatory "calling" of a Convention of the States for the Purpose of Proposing Amendments should be organized in terms of the language of "States Rights and Control of States Rights." And not just because of the tactical, or "psychological" advantages of winning an early victory, on which to build later ones.
As a practical matter, in order for a Constitutional Convention for the Proposing of Amendments to become reality, 34 States must make Applications to Congress that are sufficiently similar in language and scope that Congress may "aggregate" them for the purpose of determining whether the "two-thirds of the States" criterion has been met. Once that threshold has been reached, Congress MUST issue a "call" for such a Convention. At that point, its only discretion in the matter is to indicate the time and place of its convocation.
BTW, not ALL States need to be there. Some might boycott such a convention. But for the purpose of proposing Amendments to the Constitution, only 34 States are needed to constitute an Article V constitutional quorum. Subsequent ratification requires 38 States. We can worry about that later; let the Convention do its business first.
The beauty of your suggestion is the language you propose: The "applying" States, if they want to get anything done, should be requesting a Convention dedicated to the subject of "States Rights and Control of States Rights."
Because I am reasonably certain that not only 34 states, but all 50 states, have "issues" with federal usurpations of their Tenth Amendment retained powers — covering everything from fiscal to healthcare to cultural (e.g., marriage, abortion) to management of public lands issues, etc., etc. — it should be fairly easy to convene a "quorum" of the States necessary to force Congress to call a Convention of the States. That is to say, 34 States.
But your proposed language is also a safeguard against a "runaway convention." Any proposal issued by the Convention must pertain to the "mission" of the Convention. Which is: "States Rights and Control of States Rights."
May I note here that such a Convention might end up producing not one, but several proposed amendments? Each to be separately ratified by the several States, three-fourths of which must concur before the proposed Amendment becomes part of the federal Constitution — according to whatever ratification method Congress selects?
If we were to use the language you suggest, dear Hostage, then repeal of the Seventeenth Amendment would clearly fall within the intentional meaning of a Convention devoted to realizing the overarching theme of "States Rights and Control of States Rights."
Thank you for your amazingly fertile insight, dear Hostage!
Thanks Betty Boop. You’ve refined some points here that caused me to rethink the best approach that leads to success.
Let’s first agree that whatever we discuss and suggest here and in the future, that on occasion we put on our ‘Bernie Sanders’ mask (or pick your least liked liberal, communist, etc.) to criticize our own work; devil’s advocate approach. I just listened yesterday in the background while doing my work, a 40-minute YouTube video of Sanders speech in Portland, ME. It was awful and predictably communist with not a single new or credible proposal. But I had it on so that I would understand what the opposition is thinking and talking about. So for example, as we discuss Article V, don’t be surprised if I interject thoughts that seem to arise from left field as I attempt to factor for what the left might do. I’ll try to be realistic and not be too paranoid about it.
I think we all can agree that Professor Natelson should eventually be contacted as well as Michael Farris to view the framing of the ‘mission’ as Betty Boop calls it to ‘STATES RIGHTS AND CONTROL OF STATES RIGHTS’. I believe they will react well to this and pass it on to Mark Meckler and Senator Coburn (fmr). Based on your remarks the ‘rethinking’ should make Jacquerie much more agreeable and give Publius some new things to think about for which it is hoped he will share his thoughts.
With respect to the minimum 34 states crossing the threshold, the previous thinking and current thinking are:
Previous:
* A single issue topic is necessary but the topic should be limited to ‘States Rights and Control of States Rights’ (this is still part of the current thinking).
* All State applications for an Article V Convention of States should contain amendments that at their core are uniform with all other state applications presumably at the 34 state threshold (this is no longer a part of the current thinking).
* All State applications for an Article V Convention of States should contain one and only one amendment that is uniform in its core language among the 34 state threshold (this is no longer a part of the current thinking) .
Current:
* A single issue topic is necessary but the topic should be limited to ‘States Rights and Control of States Rights’.
* Each state application shall be devoid of amendments (although the states will have circulated a list of amendment drafts and agenda topics, the actual state applications will not include them).
* Each state application shall contain a core resolution that is uniform among all states applying that shall state as follows:
********************************************************************************
“A joint concurrent resolution of the Legislature of the State of ............... ; to the Committee on the Judiciary:
“JOINT CONCURRENT RESOLUTION NO. XX
“A joint concurrent resolution applying to the Congress for a Convention to propose amendments to the Constitution of the United States
“Resolved, That the Legislature of the State of ............... , pursuant to Article V of the Constitution of the United States, makes application to the Congress of the United States to call a convention for proposing amendments limited to and for the express purpose related to:
“Article —
“The matter of addressing States Rights and Control of States Rights; and be it further
“Resolved, That this application by the legislature of the State of ............... constitutes a continuing application in accordance with Article V of the Constitution of the United States until at least two-thirds of the legislatures of the several states have made similar applications pursuant to Article V, irrespective if Congress proposes similar amendments addressing the matter of ‘States Rights and Control of States Rights’; and be it further
“Resolved, That in noting this method of proposing amendments to the Constitution has never been completed to the point of calling a convention and no interpretation of the power of the States in exercising this right has ever been made by any court, and in observing the exercise of the power is a basic tenet of sovereign rights and the interpretation thereof is in the sovereign government making such exercise and observing the power to use such right in full also carries to use such power in part, the Legislature of the State of ............... proceeds with Article V as Pacta Sunt Servanda under the Constitution such that when two-thirds of the states make application to propose amendments to the Constitution with the limitation to address the matter of States Rights and Control of States Rights as the only matter before it, that such convention would have power only to propose amendments addressing such matter and would be limited to such matter and would not have power to hold debate beyond the scope of such matter nor would it have power to propose amendments outside the scope of such matter; and be it further
“Resolved, That a duly attested copy of this resolution be immediately addressed to the Secretary of the Senate of the United States, the Clerk of the House of the Representatives of the United States, to each member of Congress from this state and to each chamber of each State Legislature in the United States.”
********************************************************************************
This revised approach allows for flexibility among state legislators and the delegates they appoint to craft amendment(s) they can reach consensus on. For Example, the previous suggested amendment could be revised as:
************************************************
AMENDMENT XXVIII
To redress the balance of powers between the federal government and the States and to restore effective suffrage of State Legislatures to Congress, the following amendment is proposed:
************************************************
Section 1.
A Senator in Congress shall be subject to recall by their respective state legislature or by voter referendum in their respective state.
Section 2.
Term limits for Senators in Congress shall be set by vote in their respective state legislatures but in no case shall be set less than twelve years nor more than eighteen years.
Section 3.
Upon a majority vote in three-fifths of state legislatures, specific federal statutes, federal court decisions and executive directives of any form shall be repealed and made void.
Section 4.
The seventeenth article of amendment to the Constitution of the United States is hereby repealed.
************************************************
Should Section 4 not reach consensus at the Convention of States, then it can be stricken while leaving in all other provisions that do reach consensus. Each provision of each amendment addressing States Rights and Control of States Rights can then be debated to consensus.
As to Repeal of the 17th, which I fully support, the question is what twisting of the repeal will the Bernie Sanders of the Left resort to? Certainly they will create hysteria among the left that “these right-wing state legislators are out to rob the American people of their right to vote!”, and “the right wing wants to use state legislators to take over Congress and overthrow all of the protections and benefits for working men and women, and families and elderly people!”, etc. We can imagine the tirades to come.
We can also expect that the MSM with respect to a repeal the 17th debate dredge up all the history of the 17th which goes back to original Constitution Convention where Founder James Wilson proposed that US Senators be elected by popular vote but was voted down, and then an amendment for a popular vote of US Senators was introduced several times during the 19th century, getting closer each time to officially being proposed. So there is a long history there.
In sum, discussions of the 17th repeal will drown out new beneficial provisions for States Rights and Control thereof. But it’s ultimately up to the legislators who will be besieged by press and other ‘out of towners’ with all manner of confusing demands.
The 17th Amendment and behind it the 19th century movement for a popular vote of US Senators was severely flawed from the very beginning. The enormous growth of the US population as opposed to the continuation of small numbers of US Senators has caused voters to be further and further removed from their US Senator in turn causing US Senators to require enormous funds to buy media and marketing campaigns to saturate the public with. Those funds can only be obtained in exchange for the US Senators selling themselves out to special interests. Ergo, corruption on a massive scale and a catastrophic loss in representation to both voters and state legislators. As a result, the Federal Government has carte blanche to grow beyond whatever could be imagined; and Congress is for sale to the highest bidder. From a purely organic perspective, this was entirely predictable.
If a leader with the financial, management and logistics expertise (Trump?) can join with the legal scholars and inside personas (e.g. Mark Levin) of the Convention of States project (http://www.conventionofstates.com) and organize a ground operation, then state legislators can be empowered and assisted to slog through amendments and bring forth those that can achieve consensus. But that takes education, analysis, tactical planning, historical review, campaigning.
Back to the 17th, I would prompt the ground efforts to push for putting repeal of the 17th on hold and getting provisions like the first 3 sections of the suggested 28th above to reach consensus. Once voters and state legislatures have recall power (which they don’t now; SCOTUS declared recall of US Senators unconstitutional in the 1960s, see history behind recall effort of Sen. Frank Church), then effectively state legislators or voters through referendum can fire their US Senator who sells out. From the US Senator’s perspective, selling out will be a nightmare because now not only do they have to respect lowly state legislators but they also have to fear the voters when they are seen violating their principles.
The power for voters to recall (fire) their US Senator elevates them from being mere subjects to being patrons of the US Senator’s offices. With recall they become overseers with power. Whereas with mere election voting power they are marked as fools by PACs. They can never know their US Senators, they can never get close enough to establish a necessary degree of trust; it’s ludicrous that they should vote for a US Senator, an exercise in mindless inane vacuity. But once they know they can ‘fire’ their US Senator for cause, then they have a new, better more suitable power as opposed to mere mindless voting.
The campaign to repeal the 17th should wait until after other enabling powers are given to voters and after a campaign is successfully waged to persuade voters that the popular vote of US Senators is absurd given the sheer numbers and ratios that preclude any degree of effective representation save for the very very rich.
It's hard to imagine a topic that couldn't be smuggled into this convention based on that mission. There are plenty of voices who would like to diminish states rights, and as you state later in your post everything from fiscal matters to healthcare to land use to culture would be on the table.
I don't think Congress, especially a hostile one, would ever consider states rights and control thereof to be a credible "single subject".
> “It’s hard to imagine a topic that couldn’t be smuggled into this convention based on that mission. “
Can you list a few specific examples that could be smuggled?
> “I don’t think Congress, especially a hostile one, would ever consider states rights and control thereof to be a credible “single subject”.”
Can you say where in the Constitution Congress has any say on the subject of the topic, single subject or otherwise?
As betty boop pointed out:
"... I am reasonably certain that not only 34 states, but all 50 states, have "issues" with federal usurpations of their Tenth Amendment retained powers — covering everything from fiscal to healthcare to cultural (e.g., marriage, abortion) to management of public lands issues, etc., etc"
the list is long, and the flip side of any argument to limit federal authority is an argument to move more control from the states to the fed.
I'm well aware of the other safeguards in the Article V process that would serve to prevent such amendments from being adopted, but they could certainly come in under the open ended "states rights" topic. I'm pointing out that the "mission" could be a double-edged sword.
Can you say where in the Constitution Congress has any say on the subject of the topic, single subject or otherwise?
Of course not. The Constitution is silent on the matter, hence all the discussion of the "single subject" legal analysis upthread.
My main point is that I think entering into a convention with such a broad mandate and without specific amendment proposals is doomed to fail. I don't see how pushing the sausage-making into such a high-profile, high-pressure setting could possibly work in today's world.
I haven't researched myself but have heard Levin say that information coming out of the original convention was strictly embargoed, as was necessary to get through the tough negotiations without outside political pressure. Can you imagine that happening in today's media climate?
> “and the flip side of any argument to limit federal authority is an argument to move more control from the states to the fed.”
How would limiting federal authority by focusing on states rights and control of states rights move control from the states to the federal government?
> “I’m well aware of the other safeguards in the Article V process that would serve to prevent such amendments from being adopted, but they could certainly come in under the open ended “states rights” topic.
What amendments are you referring to? Can you give examples?
> “”I’m pointing out that the “mission” could be a double-edged sword.”
Let’s see you put forth some examples first before jumping to that conclusion.
> “I haven’t researched myself but have heard Levin say that information coming out of the original convention was strictly embargoed, as was necessary to get through the tough negotiations without outside political pressure.”
I have never heard Levin say or suggest that an Article V Convention of States should be secret nor have I ever heard him refer to secrecy in the original Constitutional Convention. Can you provide references to what you are saying?
Here’s an idea. When a state applies for a convention, in addition to listing the topic, it should list all the other states that have applied for the same topic up to that point. That would prevent Congress from tallying the application in the wrong column under the excuse of different wording.
You're assuming the consequent that focusing on "States Rights and Control of States Rights" means limiting federal power. It could just as easily mean limiting states rights.
What amendments are you referring to? Can you give examples?
I don't have a particular one in mind but it doesn't take much imagination. How about explicitly expanding the Commerce Clause to encroach on things like state gun laws as has been tried by the left in the past?
I have never heard Levin say or suggest that an Article V Convention of States should be secret nor have I ever heard him refer to secrecy in the original Constitutional Convention. Can you provide references to what you are saying?
I'm not going to rummage through a bunch of old podcasts but Wikipedia says:
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