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….

> “IF my suspicion is right that SCOTUS struck down the Frank Church recall because it originated in a popular vote, then this is a “mistake” we cannot afford to repeat.”

As you corrected in a subsequent post, it was not a SCOTUS ruling, rather a federal judge citing the unconstitutionality of states recalling members of Congress. If I recall correctly the organizers of the recall campaign had been successful in the recall and were fired up to take it to SCOTUS but backed down because the federal ruling was very clear leaving no basis for mounting a challenge based on the 9th or 10th Amendments. I think had they been granted a hearing before SCOTUS, they would have lost. Regardless, it is correct to conclude that a constitutional amendment is needed for granting powers to recall members of Congress.

> “Plus the language “subject to recall by their respective state legislature or by voter referendum” seems insufficiently precise as a structural principle. What would justify either alternative? So why not just “marry up” the two?”

In my experience on the west coast, specifically in California, Oregon and Washington, the people have had on several occasions resorted to voter referendum because state legislatures would not act. For example, Proposition 8 in California or several anti-tax initiatives in Washington State.

Thus, voter referendums serve as an end-run around an intransigent legislature.

> “By inserting a mediating body — the “county” — perhaps any objection to direct popular vote can be overcome.”

Leaving the actual procedures to the states might be more conducive to reaching an adequate consensus to crossing the 34-state threshold for proposing an amendment. Language itself may not assure outcomes but certainly enabling language in provisions can provide green lights to those that seek clearance to go in directions they choose.

> “Why did the Framers want to interpose mediating structures between direct expressions of public will and the political and legal outcomes that they are intended to achieve?”

From my reading the Framers were well aware of history and the failures of democracy as a philosophical basis for governing. So they sought a hybrid of sorts whereby elections would be democratic, legislative processes would be partially democratic but a system of checks and balances would be governed under ‘Rez Publica’ or ‘Rule of Law’ or equivalently a Republic. Intermediate structures were thus used to ensure that a republican form of government would survive. To appreciate the value of intermediate structures one need only think what life would be like without them. In this context it’s not far-fetched at all to imagine people losing their fortunes, properties and freedoms to forces of ‘democracy’, and in fact much of that has happened and continues to happen where intermediate forces are weak.

California was my "model state" in considering the idea of a county-by-county intra-state convention as perhaps the safest means to express the popular will with regard to a senator-recall effort. California is such a diverse state; yet most of its total population is concentrated in large urban areas, which belong to counties. Agricultural and rural areas — which belong to counties, too — tend to be comparatively lightly populated. So I worried that the one-man-one-vote rule of a popular referendum would over-represent the interests and sentiments of cities, at the expense of the folks living out in the country, whose interests and sentiments could wind up being under-represented in the final tally. Anyhow, that was the general idea.

Not that the passing of citizen referenda seems always to be binding on state legislators or courts. In my home state, formerly known as the Cradle of Liberty, but which has sunk into the status of the bluest-of-blue states in more recent times, the citizens overwhelmingly voted against gay marriage in a referendum. The popular will was clear on this matter. While the state legislature was dithering over what to do about it, the state's highest court mooted the matter, by unilaterally ruling gay marriage legal — the first state in the nation to do so.

In short the Supreme Judicial Court here did an end-run around the General Court, the state legislature. Romney was in office at the time. He didn't make a peep about it....

One would think that, as chief law-enforcement officer of the Commonwealth, Romney might have had something to say objecting to this clearly unconstitutional usurpation of legislative powers by the judiciary, on the basis of our own state constitution. But he kept his silence.... (I'm still trying to forgive him.)

Stuff happens. It's not just a matter of intransigent or unaccountable legislatures; it's also about ideological, intransigent, completely unaccountable courts which usurp the powers of the legislative branch, completely ignore the sense of the public conveyed in a voter referendum or initiative, making "law" from the bench without the consent of the governed.

You wrote: "Leaving the actual procedures to the states might be more conducive to reaching an adequate consensus to crossing the 34-state threshold for proposing an amendment [than to structuring a senatorial recall???]." Given the background I just laid out, how do we ensure the states can be trusted to do the right thing?

I dunno. Certainly, Hostage, I have more questions than answers. Thank you so very much for your well-reasoned, highly informative essay/post — which helps me work through these problems.

> “You wrote: “Leaving the actual procedures to the states might be more conducive to reaching an adequate consensus to crossing the 34-state threshold for proposing an amendment [than to structuring a senatorial recall???].” Given the background I just laid out, how do we ensure the states can be trusted to do the right thing?”

All your concerns are quite valid. When discussing the balance between the States and the Federal Government, we may need to accept that not all states are going to participate in the new powers available to them. Some states can be expected to tie themselves up in their internal politics.

The example you cited in Massachusetts was eerily repeated almost play-by-play in California with a few different twists and turns. The people of California voted to amend their state constitution to define marriage as between one man and one woman. The legislature would not do it. Proposition 8 was therefore passed by voter referendum. It delayed same-sex marriage by a few months before a federal judge who was himself homosexual struck it down as unconstitutional. The Proposition 8 organizers appealed (the state solicitor general would not do it) to the state supreme court which upheld Prop 8 but the democrat governor Gray Davis would not enforce it. Meanwhile the federal decision was appealed, the homosexual federal judge who made the decision passed away and the case fizzled out. The governor would not enforce it nor would his republican replacement Arnold Schwarzenegger, and neither would commit state attorneys to defend the state’s amendment in federal court. Because there was no defense by the state, the higher courts ruled that the Prop 8 organizers did not have standing to represent the will of the voters. Several notable and well-respected constitutional attorneys lamented that they had never seen justice so blatantly corrupted.

Again regarding the California marriage case, it was a federal judge that struck down the state’s amendment to its constitution so the provision for 30 states to record a quash (void and repeal) of that federal court decision would be available. I believe many states would have joined California to quash that court decision as they recognized the same could or would happen in their states.

As for political and legal actions internal to a state, with no federal action interjecting, I think unfortunately an overreaching state supreme court will need to be dealt with at the state level. It would be a state matter. Certainly each state could vote to make counties as intermediaries to political power as you suggested. I looked at a map of the USA years ago broken down geographically by county and colored blue or red, The number of red counties overwhelms and the map is almost everywhere red whereas the blue counties are as faint streaks in the map background.

Recall may not work for all states but it should work for most states. The provision for term limits is also another tool that a state legislature can use to break up incumbency and Cartel control.

We should pray and strive to give states every tool they can avail themselves of in their relations with the federal government. So far we’ve listed:

Recall of US Senators
Repeal of the 17th
Term limits for US Senators
State quash of specific federal matters

Let’s see what happens this next Saturday in San Diego with ALEC.

Because there was no defense by the state, the higher courts ruled that the Prop 8 organizers did not have standing to represent the will of the voters. Several notable and well-respected constitutional attorneys lamented that they had never seen justice so blatantly corrupted.

I lament with them. Thank you so much, Hostage, for documenting this sad piece of California history.

You wrote:

I looked at a map of the USA years ago broken down geographically by county and colored blue or red, The number of red counties overwhelms and the map is almost everywhere red whereas the blue counties are as faint streaks in the map background.

Jeepers, what time period did this map capture? What would a more up-to-date map look like?

If I had to guess, I'd say things haven't changed much, because human nature does not change much. You noted that the "blue counties" were merely faint streaks in an overwhelming sea of "red counties" (or words to that effect).

Well I suppose that's the good news. The bad news is, it seems the Framers were mainly worried about preventing a tyranny of the majority. So much so that they did not foresee the developments of our own time, culminating in what can only be called a tyranny of the minority. The county-by-county map graphically represents the problem.

But then the Framers believed (probably "hoped" is more accurate) that a virtuous people would hold their public officials, at all levels, accountable for the performance of their public duties. The "tyranny of the minority" can only get ground when the people fail to hold their representative or lawfully appointed institutions accountable for their failure to faithfully, punctiliously carry out the American rule of law. They all swore oaths (or affirmations) that they would do so, faithfully, while occupying office.

To me, an oath-breaker is a liar, and thus should be impeached (if applicable) or recalled. As the California and Massachusetts cases re: gay marriage make so crystal clear to anyone who isn't brain dead.

I so agree with you here: "We should pray and strive to give states every tool they can avail themselves of in their relations with the federal government."

I pray godspeed to the delegates at the ALEC conference in San Diego this coming weekend....

If you know of any news emanating from there, would you kindly ping me???

On the other hand, if the deliberations are secret, I can wait. Public disclosures only give a head's-up to people who want to beat you, seeking for tactical advantage.

May God continue to bless the United States of America.

Thank you, Hostage.

> “Jeepers, what time period did this map capture? What would a more up-to-date map look like?”

It’s a very recent map. Most counties as you mentioned are sparsely inhabited and many of them are greatly controlled as federal lands.

The blue ‘streaks’ have been described by Obama himself as an ‘Urban Archipelago’.

The good news is that state legislatures take into account counties no matter how sparsely populated they may be. Political Scientists know that in general state legislatures are more representative of rural interests and tend to tilt towards conservative issues and policies than would normally be the case given a straight population representation.

Although conservatives greatly outnumber liberals nationwide, the results of elections and referendums hinge greatly on turnout which in turn hinges on how well issues resonate with voters. For example, to ratchet up turn out from conservatives, issues such as same-sex marriage, illegal aliens and Obamacare taxes (emerging) are ‘emotional triggers’.

With respect to the structural ‘state focused’ amendments discussed in this thread, the issues are relatively ‘innocuous’ so that opposition in terms of emotional advocacy will be difficult to muster. On this note I’ve changed views just this past week that the term ‘States Rights’ can be used by the left and its MSM as a euphemism for ‘segregation’, ‘racism’ and ‘White Privilege’ with all the attendant symbols of rebel flags and so on. In other words ‘States Rights’ creates flak and noise that is not needed and COS does not need to utilize any emotional triggers like those used by Donald Trump for example. I like what Donald Trump is doing publicly on the national stage but I am thinking of an average calm low-key state legislator who is receptive to considering a COS focused on States and their role in the Constitution.

So maybe the single topic for COS could move from ‘States Rights and Control of States Rights’ to ‘A New Role for States in the US Constitution’; something along those lines. what do you think?

As for the ALEC Convention in San Diego, I’m in touch with the Media and Public Affairs group and have received a list of panelists and their contact info just this morning. So I expect to get more information on the presentation for that agenda item this week. The agenda item for “Article V – Proposed Rules for a Convention of States” takes place starting at 9:30 am and finishes shortly before Ted Cruz’ talk at the plenary lunch session on Friday July 24.

Here’s a link to the full agenda:
http://www.alec.org/annual-meeting/annual-meeting-agenda

The fact that COS is even on the agenda is a huge statement in itself and placing its time before Ted Cruz assures lots of exposure and participation. Some state legislators have been hearing from the grassroots but more legislators need to hear. The annual ALEC meeting usually has about 2000 state legislators in attendance which is a good portion of the 7,398 total. It would be good to get a Freeper or two to that Friday meeting’s Q&A. Cost will be about $1000 to $1400 per person with airfare and lodging. I can donate or I’m thinking of possibly flying down there on my own expense as it is only a 3 hour flight from where I’m at. But having the panelists names and contact info is probably enough to follow up on.

So maybe the single topic for COS could move from ‘States Rights and Control of States Rights’ to ‘A New Role for States in the US Constitution’; something along those lines. what do you think?

It seems to me (FWIW) that the gist of the structural amendments you propose is not to establish a "new role" for the States, but merely to repair the original constitutional architecture, the erosion of which has deprived the States of their due weight in the functioning of our constitutional, republican system as envisioned by the Framers. This mischievous, subversive destruction really got started with Amendment XVII. In short, the "Left progressive axe" was first successfully struck against the States, by eliminating their direct representation qua individual States in the national Congress. After a "long train of abuses," it is clear that U.S. senators no longer represent/speak for their States; nor do they speak for the citizens of their States (they are too far removed and thus unaccountable to them, for the reasons you powerfully cited in an earlier post on this thread). The upshot is, they only represent/speak for themselves; which boils down to their principal concern, which is reelection.

You cite Senator John McCain as a prime example. In the primaries, he runs to the right. In the general election, he moves to the middle, or even to the left. It's all about getting reelected. And since he can command donations from deep pockets, due to his long Washington experience and contacts with K Street, he doesn't have to rely on the nickel-and-dime contributions of his direct constituents. The upshot is, he gets reelected every time, on the strength of his own personal "legend." In short, John McCain represents no one other than himself, for the virtually exclusive benefit of his own future political fortunes....

It is time, and past time for these old lions to simply pass away. Unaccountable to anything beyond their own personal political survival, they do not serve either their State or the people of their State.

However, I think it would be nice if the people of the State that elected them had the right to recall them for due cause. Currently, i.e., in the post-Amendment XVII era, once elected, they are deemed "federal officers" that, under Article I, Section 5, cannot be challenged or removed by the people of the State that elected them. So, to whom are they accountable, since they are neither accountable to their State legislature nor to the people of their State?

So I think I prefer your original proposal, "States Rights and Control of States Rights," rather than your revised proposal, "A New Role for States in the US Constitution."

And the four heads you touch on — (1) Recall of US Senators (2) Repeal of the 17th (3) Term limits for US Senators and (4) State quash of specific federal matters —would seem to hold great promise for the restoration of the original federal architecture ordering State vis-a-vis national relations. Indeed, this balance of powers was the original prescription of federalism under the Constitution.

I'm praying for the success of the ALEC conference re: rules and procedures of a COS for Proposing Amendments. May God bless, Godspeed them. Please keep me posted, Hostage, of any breaking news you hear of.

Thank you ever so much for writing!!!

> “It seems to me (FWIW) that the gist of the structural amendments you propose is not to establish a “new role” for the States, but merely to repair the original constitutional architecture, the erosion of which has deprived the States of their due weight in the functioning of our constitutional, republican system as envisioned by the Framers.”

Yes, but not only to repair but also to enhance and ensure a direct role by voters through recall.

> “ This mischievous, subversive destruction really got started with Amendment XVII. In short, the “Left progressive axe” was first successfully struck against the States, by eliminating their direct representation qua individual States in the national Congress. After a “long train of abuses,” it is clear that U.S. senators no longer represent/speak for their States; nor do they speak for the citizens of their States (they are too far removed and thus unaccountable to them, for the reasons you powerfully cited in an earlier post on this thread). The upshot is, they only represent/speak for themselves; which boils down to their principal concern, which is reelection.”

Perfectly stated. And to achieve reelection they rely on moneyed interests who provide the resources to have a bigger megaphone, press script and propaganda network than any opponent including funds to buy votes from the party partner in the Uniparty (more on this below).

> :You cite Senator John McCain as a prime example. In the primaries, he runs to the right. In the general election, he moves to the middle, or even to the left. It’s all about getting reelected. And since he can command donations from deep pockets, due to his long Washington experience and contacts with K Street, he doesn’t have to rely on the nickel-and-dime contributions of his direct constituents. The upshot is, he gets reelected every time, on the strength of his own personal “legend.” In short, John McCain represents no one other than himself, for the virtually exclusive benefit of his own future political fortunes....”

John McCain’s campaign team also buys votes from democrat bosses during the republican primary in order to eliminate the conservative primary challenger. Arizona is a red conservative state and John McCain cannot survive a conservative challenge without enlisting help from democrat sources.

This is exactly how the Washington Cartel operates. We saw it clearly leaving no doubt in the Chris McDaniel v. Thad Cochran race for US Senator from Mississippi. Through open press reports and knowledgeable on the ground Freepers in Mississippi, Cochran’s people (backed and joined at the hip with the Barbour family) tried on the first round to take the election by fraud and lost but were close enough to try again in a recall. Barbour, McConnell and others in the Senate directed PACs to release funds to buy the black democrat vote who were bribed with ‘walking around money’ to show up at the GOP open primary and vote for Cochran. They ended up knocking McDaniel out of the race even though he won the first round and had he known of the fraud of that first round he would have acted sooner and denied a runoff opportunity to Cochran, and would as a result be a US Senator today. It is also worthwhile to note that Cochran, Barbour and others were at one time democrats who ‘switched’ during the Reagan Revolution because the writing was on the wall that being a democrat was a losing proposition no matter how one sliced it. In other words, they were corrupt democrats then, and they are corrupt democrats now but under cover of an ‘R’ label. This is a case where term limits would have been of great benefit.

> “So I think I prefer your original proposal, “States Rights and Control of States Rights,” rather than your revised proposal, “A New Role for States in the US Constitution.””

I’ll take your advice and stick with ‘States Rights and Control of States Rights’.

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