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….
An interesting vanity essay on an Amendments Convention. Worth reading.
Very good, Betty Boop!
Before changing the Constitution ENFORCE it.
who is ‘we’? You mean “we the people” that elected Obama, Clinton and the RINOs? “we the people” elected Presidents that chose all these Supreme Court justices. “we the people” elected a Republican congress that allowed Obama to do whatever he wanted.
“Before changing the Constitution ENFORCE it”
Perhaps we need to change it IN ORDER to enforce it.
The "we" of Obergefell are 14th Amendment corporate representatives, officers and paper corporations which have no rights, only privileges, and therefore are not the vast majority of Americans.
Well OK then.
YES!!!!!!!
How would you suggest we do that? Elect more RINOs?
WHAT IF!.... the people(generally) have become corrupt in some ways and in various degrees...
AND....... they have exactly a federal givernment they want, need, desire, and it matches them exactly.. (GENERALLY)..
Only an ultra-optimist would not believe this..
People can change for the better in mass.. also; people can change for the worse in mass..
People that refuse to rise up against EVIL in some way.. are enablers of Evil.. and ARE in fact.. Evil..
One thing overlooked by you above as almost all debaters do...
IS...... voter fraud.. not just normal voter fraud thats always present.. BUT large scale organized well thought out connected grass roots massive voter fraud.. not addressed by any authority or even the republican that being effected COMPLETELY..
Voter fraud so deeply ensconced some districts had 150% of the voters vote in 2012 and probably well before that.. some places more than 150%..
AND thats the places even checked/caught.. with little or NO outrage..
Seems NOBODY wants to think out it.... I could be WRONG, and hope I am to some degree..
But alas; as the bible foretells, (some say).. THIS MUST HAPPEN..
Really though... As a fruit rots (on the ground) it fertilizes a new TREE..
I love Trees.. a new one would be Cool..
Bonus: https://www.dropbox.com/s/iu92zs5gg2bwuy3/FIRE.avi?dl=0
***
Interposition.
who is ‘we’? You mean “we the people” that elected Obama, Clinton and the RINOs? “we the people” elected Presidents that chose all these Supreme Court justices. “we the people” elected a Republican congress that allowed Obama to do whatever he wanted.Not to mention: "We the people" elected GW Bush TWICE that gave us John Roberts. (who then gave it to us TWICE and I'll bet he's not finished)
I understand the intention to strengthen constitutional protection of state’s rights and limit federal abuses of power.
However, knowing how untrustworthy and compromised nearly all legislators are, we would be better advised to not open up the Article V Pandora ‘ s box.
I have the strongest hunch that it will ultimately be co-opted by the left, and render opposite of desired results.
Protests and non violent civil disobedience would likely scare politicians into better behavior.
When they feel the heat, they see the light.
Remember Clinton being chased by FREEPERS embarrassing the hell out of him?
Remember the Tea Party protests that gave us the 2010 victories?
We still have a voice. We must be organized, in great numbers, and Loud!
Art V is for purposes of proposing Amendments, ie changing the Constitution.
That could be the motto for the Convention. Right now, the Constitution is primarily enforced by the Supreme Court, secondarily by the Congress and the President. That's the problem. Enforcement of the Constitution is done at the federal level, so the Constitution is usually NOT enforced against federal power outside of violations of the Bill of Rights.
An amendment or amendments need to be adopted providing for a way to enforce the Constitution that does not rely on any of the federal branches of government.
NO. I don't mean any such reduced and corrupted idea of "we the people." You are talking about a "mob," not about citizens.
I was most definitely referring to the "We the People" of the Preamble of the Constitution of the United States of America, which they duly ratified, through their respective State conventions.
In short, I was referring to "We the People of the United States, [who] in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
Methinks people on that track of understanding would never have voted for Obama in the first place.
Yeah. Dubya was the best we have had since Reagan and that isn’t saying much. In recent times dubya will be known as the high water mark unfortunately. It can always get worse and it will get worse. This is just the beginning now that the sharks smell all the blood.
Seems like an eminently good idea to me, Ray76. Unfortunately, it appears the constitutionally legitimate enforcers are totally asleep at the wheel.... They (evidently) have decided it's best to just "go along to get along."
It is sickening to me that our most direct representatives in the national government have made a habit of sacrificing the liberties of the very people who give them authority to act, so that they can continue to "get along."
Disgusting. Disgraceful.
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