Do We the People Need an Article V Convention of the States in the Aftermath of <i>Obergefell</i>?

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

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,

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.

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….

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?

Natelson discusses the secrecy issue in his article, "State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters":

Secrecy

Those conventions addressing the issue appear to have applied a rule of secrecy. A principal purpose was to allow commissioners to think aloud, debate freely, and change their minds without losing face. For example, the rules of the First Continental Congress provided that “the doors be kept shut during the time of business, and that the members consider themselves under the strongest obligations of honour, to keep the proceedings secret, untill [sic] the majority shall direct them to be made public.” The 1861 Washington Conference Convention prescribed that “[t]he yeas and nays of the members shall not be given or published—only the decision by States.”

Similarly, the rules of both the Constitutional and Washington Conference Conventions specified that “no copy be taken of any entry on the journal during the sitting of the House without leave of the House,” and that “members only be permitted to inspect the journal.” The rules of the Constitution Convention admonished that “nothing spoken in the House be printed, or otherwise published or communicated without leave.”

Our advisors were unanimous in believing that such secrecy would not be publicly acceptable today....

Everybody was sworn to secrecy at the 1787 Convention. Natelson cites other examples of conventions adopting secrecy rules. So, as a matter of precedent, it is "doable." However, as Natelson notes, in the current climate, a secret convention would likely not be acceptable to the public.

Too bad. If the proceedings were to be public, I'd expect to see a lot of windy grandstanding from the commissioners....

> “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.”

Possible point but implausible. To think that the States will convene to limit their rights is not going to gain traction anywhere. Think you need to move yourself over to the reality side of the discussion.

> “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?”

If the left could use a Convention of States as a vehicle to do such a thing they would have already a long time ago. The reality is they are vastly outnumbered in the Article V arena. Such an amendment idea again falls off the reality platform.

> “’m not going to rummage through a bunch of old podcasts but Wikipedia says:

Fair enough but the issue is not a salient one and has no bearing to the issues above.

So far you’ve suggested that States will convene to limit their rights, move control of their rights to the federal government and expand the Commerce Clause to restrict gun rights. In light of the fact that conservatives control 66 of 99 state legislative chambers I think you will have a very difficult time convincing anyone that your views are realistic.

In the past I have counseled people with exaggerated fears that it is possible for them to dream up all sorts of monsters in the attic but then there is reality and facts which are stubborn things.

I’m sticking with ‘States Rights and Control of States Rights’ as the single topic mission statement for the States to rally around.

I've suggested no such thing and you're disingenuously misstating my position.

My points about what could happen were hypothetical and to illustrate the sloppiness of the "states rights" subject as a stated topic for the convention.

You may think it's unrealistic that the left in each of the 50 states as well as the other entrenched powers will try to corrupt this process, but I think your're wrong. As someone once said,

"... there is reality and facts which are stubborn things."

I don't think Congress, especially a hostile one, would ever consider states rights and control thereof to be a credible "single subject".

My understanding is Congress has no role, no discretion in determining "credibility." If 34 States apply using uniform language re: "States Rights and Control of States Rights," Congress MUST "call" a Convention of the States for Proposing Amendments.

Of course, one would expect Congress to be hostile to any proposal that would limit their own power.

...[S]ome delegates—notably George Mason of Virginia—pointed out that Congress might become abusive or exceed its powers. It might therefore refuse to adopt a necessary or desirable amendment, particularly one designed to curb its own authority. Accordingly, the Framers added [to Article V] the convention for proposing amendments as a vehicle for the states to present corrective amendments for ratification while bypassing Congress. — Natelson, p. 29. Emphasis added.

Congress has no role in determining subject matter or any procedural matters; e.g., voting rules, qualifications of commissioners, size of State delegations, etc., etc. And no discretion as to its duty to "call" once 34 State Applications on the same subject matter has been reached.

Part of the discussion on this thread is whether a single subject convention is required or desirable. My point is that "States Rights and Control of States Rights" is so broad a topic that Congress would, or should, never consider it a single subject.

If we decide that a single subject isn't important or enforceable by Congress, then why have a subject at all?

I gave you plenty of opportunity to put forward examples where as you said the mission topic could be used to limit states rights and move control of states rights to the federal government.

Your remarks and examples are unrealistic. You will have difficulty convincing anyone that more than 34 states will convene to restrict their own rights, move control of their rights to the federal government and possibly propose an amendment to expand the power of the Commerce Clause to encroach on gun rights.

> “You may think it’s unrealistic that the left in each of the 50 states as well as the other entrenched powers will ***try*** to corrupt this process, but I think your’re wrong.”

The left can ***try*** anything. There’s no argument that the left can ***try*** to corrupt anything. That’s not what we’re talking about here otherwise it’s fear mongering leading to dreaming up neverending nightmares of monsters in the attic. That’s not useful to these discussions.

You posit that the left will ***try*** to do whatever, and then you attack people for something which they did not do and which is not an argument. Of course the left can ***try*** anything. To say that the left can try to corrupt anything is a tautology. There’s no sensible argument against a tautology so don’t accuse people of doing that. I have no argument that the left will ***try*** to corrupt anything, I just don’t believe that your points and example could ever be ***accomplished*** by the left.

Put some reality into your assertions and describe not what the left will ***try*** to do but how they can reasonably be expected to ***accomplish*** what they try to do. You mentioned they will use the Convention of States to expand the reach of the Commerce Clause to effect gun rights under the mission of ‘States Rights and Control of States Rights’. Put forth a concise lawyerly procedure of specifically how they would do such a thing? How would they persuade at least 34 state legislatures to do such a thing?

Who is asking Congress to judge importance of subject matter or to consider enforcing subject matter?

Indeed, Hostage. Article V denies Congress any role in either instance.

Under Article V, WRT a convention of the states, Congress is not acting as a legislature, let alone a judge. Its function, as Prof. Natelson points out, is strictly ministerial, acting for the benefit of the State legislatures, not the federal government or its own institutional interests.

BTW, Hostage, I agree with you that "States' Rights and the Control of States' Rights" qualifies as a "single subject." The second part – "control" — is not a different, separate topic, but is logically incidental to the first part — "States' rights."

I'm trying to follow semimojo's reasoning, and may not have gotten it right. (Correct me please if this is not the case!) It seems he equates the input — "single subject" — with an "output" — which can only be a single proposed amendment.

But if the subject matter is States' rights and the powers incidental to effecting it ("control"), then a Convention of the States for the Proposal of Amendments organized around this subject matter conceivably could elicit multiple proposals. Every proposal would be subject to vote by the state delegations (assuming a quorum exists) on a one-vote/one-state basis. A simple majority would carry the proposal; and if carried, that proposal would become eligible as a proposed amendment, on a stand-alone basis.

So a "single subject" isn't necessarily restricted to a single proposed amendment.

At least, that is my understanding, based on Prof. Natelson's splendid analysis.

Yes you have it right with respect to Professor Natelson who has created a great guideline document.

I see the poster semimojo as trying to stir fears that the mission of the Convention delegates will somehow be hijacked because is it broad enough to create amendments that will diminish States Rights and mover more control of States Rights over to the Federal Government. He said the mission is so ‘broad’ that something can slip through to effect such things. I asked him for examples and they were wholly unrealistic.

... the mission of the Convention delegates will somehow be hijacked because it [is] broad enough to create amendments that will diminish States Rights and move more control of States Rights over to the Federal Government.

Well, fine. But semimojo needs to ask himself a question: WHY would the several states apply for a Convention for the purpose of proposing amendments, the effect of which would only further enslave them to the federal authority???

The Article V COS is designed to be a "push back" of the States vis-a-vis the overreach of federal authority at the expense of the States, by providing the States with a means of doing an end-run around Congress altogether.

WHY would the States apply for a convention that would further reduce their own powers and authority? That's just nutz.

You mentioned they will use the Convention of States to expand the reach of the Commerce Clause to effect gun rights under the mission of ‘States Rights and Control of States Rights’. Put forth a concise lawyerly procedure of specifically how they would do such a thing? How would they persuade at least 34 state legislatures to do such a thing?

Nice try. I didn't say that.

Can you address what I *did* say?

> “Nice try. I didn’t say that.”

Yes, you did.

> “Can you address what I *did* say?”

No, I won’t do that because it’s all here in your posts:

#195______________________________________________
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.

#197______________________________________________
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.

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.

#200______________________________________________
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***.

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?

> “ Congress determining whether a petition addresses a single subject is different than congress judging the importance of whatever that subject may be.”

Again, who is asking Congress to determine or judge anything here? Congress is not authorized to determine or judge anything here.

But you keep making statements that Congress is somehow involved in determining and judging matters of an Article V Convention. This is not contributing anything of value to this thread.

I don't think any such amendments would be successful and of course haven't argued that they would be.

If we have a convention with only a fuzzy notion of states rights as the topic nothing will be accomplished. The hard work of getting agreement on the details of amendments won't happen at a big meeting with delegations from 50 states, each coming in with their own ideas of what the amendments should be.

Do you really think that deals are actually negotiated at international summit meetings? Of course not. The hard work is done in advance and the summit is ceremonial. This isn't complicated - it's basic organizational behavior and blocking & tackling.

Your reasoning is circular semimojo.

You had more than your 15 minutes by virtue of the fact that people of all backgrounds. knowledge levels, experiences are entering and leaving FR threads by the hundreds every hour, and it was for their benefit that the questioning has been drawn out for as long as it has so that they can see how a poster such as yourself is given an opportunity to make a contribution and when challenged resorts to denial, evasion and admission as to a lack of facts.

I will give you credit that you did not resort to ad hominem attacks when pressed to defend your statements.

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