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

self; | July 1, 2015 | Jean F. Drew

[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….

[plain talk]

Well the voters are electing liberals and RINOS. That is what is actually happening on the ground despite what you and I wish to happen.

[betty boop]

Well the voters are electing liberals and RINOS. That is what is actually happening on the ground despite what you and I wish to happen.

Well dear plain talk, such folks are acting outside of the rule of law. In so doing, in the end, they are only shooting themselves in the foot, or worse.

[paratrooper82]

“Sometimes the “tree of freedom” needs to be watered with the blood of patriots” -Thomas Jefferson-

[Glad2bnuts]

What victories in 2010? What has changed? The Neo-Communists/Dims/so called Liberals are running us headlong off of a cliff, with bankruptcy, national dissolution, and poverty for the masses at the bottom. The plan from the Repuklicans is to AID and ABET the process. We have no more time to wait. Radical ideas must be used and amending the Constitution is the right plan for the job. We must trust ourselves, and ORGANIZE. Keep those out that hate our founding. OVERWHELM the system, this time with ideas and ideals that work and are everlasting.

[GingisK]

I’m watching Texas. If they secede, I’m over there.

[Jacquerie]

The states know all too well that Washington DC is out of control and driving them and their people into misery. It is the duty of your state assemblyman and senator to fight DC despotism.

Well over half of the states opposed both Obamacare and his illegal amnesty in court. I'm aware of two states taking steps to counter the effect the fag marriage Scotus decision. State legislatures are coming to realize they have the power to arrest and reverse the trend.

I suspect most Article V opponents emotionally refuse to believe that America is not exempt from historic cycles of freedom to slavery, of the sort Aristotle described unless we actively work to stop the process. They believe we can find deliverance if we only elect the right person for president. Our history has proved them to be fools.

Article V opponents equate a state amendment convention with our corrupted congress, a congress in which our freedoms and rights are easily traded away today for money, media support, and reelection tomorrow.

They are wrong. Article V opponents are stuck in static analysis.

Men are shaped by the institutions in which they participate. The congressman who would sell our rights today would never think of harming his family. Michele Bachmann was run out of congress for being virtuous in a corrupt institution. Had she joined the sleaze and venality that typifies congress, she could be there today. What I describe is identical to the behavioral difference between men in strip clubs and church.

The states will send serious men/women of character and judgment armed with commissions to promote their state supported amendments. Delegates to an amendment convention will be unconcerned with that which drives congress: money, personal power, and reelection will not be their focus or interest.

We can have every expectation that state delegates will rise to the occasion. They will understand the gravity of their assignment and conduct themselves in a manner precisely opposite that of congress.

[Phlyer]

“Before changing the Constitution ENFORCE it”

Perhaps we need to change it IN ORDER to enforce it.

It always seems strange to me that right after the Supremes demonstrate that the written words don't matter, a lot of people shout that we need to change the written words. WTF??!!

There is nothing wrong with what's going on in Washington now that wouldn't be improved enormously if they just abided by the currently written - and very clear - words. Instead, we get 'shadows and penumbras' of what's written . . . which has the sole effect of rendering what is written meaningless. How does writing down some other words - that will also be ignored - improve that?

On the other hand, if 'we' lost control of an Article V convention . . . which I think is very likely - these guys are career politicians who live for that sort of forum - then say good-bye to whatever shreds of the Constitution still have meaning. And say hello to basic 'rights' like 'freedom from want' (which means the end of private property), and 'freedom from fear' (which means the end of the 2nd Amendment, or the 1st).

No thanks.

[Cheerio]

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.

How is it a PANDORA's box?

We are witnessing a runaway Government every day of our lives. How could an Article V convention of the States be any worse? I fail to see it.

[xzins]

Curing Federal Dysfunction by Constitutional amendment: A Primer

And Prof Natelson's website: Our American Constitution

Both are worth a look-see.

[Publius]

Here's my old standby.

***

The amendatory process under Article V consists of three steps: Proposal, Disposal, and Ratification.

Proposal:

There are two ways to propose an amendment to the Constitution.

• The Congressional Method requires the House and Senate to pass an amendment by a two-thirds majority.
• The Amendments Convention Method requires the legislatures of two-thirds of the states to apply to Congress to call a Convention for Proposing Amendments. The states may request a single-subject convention or a general convention open to all subjects. Once the two-thirds threshold is reached, Congress is required to set a time and place for the convention.

Article V gives Congress and an Amendments Convention exactly the same power to propose amendments, no more and no less.

Disposal:

Once Congress, or an Amendments Convention, proposes amendments, Congress must decide whether the states will ratify by the:

• State Legislature Method, or the
• State Ratifying Convention Method.

The State Ratifying Convention Method has only been used twice: once to ratify the Constitution, and once to ratify the 21st Amendment repealing Prohibition.

Ratification:

Depending upon which ratification method is chosen by Congress, either the state legislatures vote up-or-down on the proposed amendment, or the voters elect a state ratifying convention to vote up-or-down. If three-quarters of the states vote to ratify, the amendment becomes part of the Constitution.

Forbidden Subjects:

Article V contains two explicitly forbidden subjects and one implicitly forbidden subject.

Explicitly forbidden:

• No amendment may be added to the Constitution concerning slavery or capitation taxes until 1808. We’re past that deadline.
• No amendment may be added to the Constitution to change the principle of equal representation in the Senate unless every state deprived of that right approves. If California wants five senators, every state must have five senators. To permit violation of this principle, every state would have to ratify the amendment, not just three-fourths.

Implicitly forbidden:

• The Constitution of 1787 may not be abrogated and replaced with a new document. Article V only authorizes “a convention for proposing amendments to this Constitution”; therefore, the Constitution of 1787 is locked in place forever. Congress and an Amendments Convention have exactly the same Proposal power; therefore, neither Congress nor an Amendments Convention can start over. Both bodies can only propose amendments. To permit the drafting of a new constitution, this provision in Article V would first have to be repealed; it would be a two-step process.

I have two reference works for those interested.

The first is from the American Legislative Exchange Council, a conservative pro-business group. This document has been sent to every state legislator in the country.

Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers

The second is a 1973 report from the American Bar Association attempting to identify gray areas in the amendatory process to include an Amendments Convention. It represents the view of the ruling class of 40 years ago. While I dislike some of their conclusions, they have laid out the precedents that may justify those conclusions. What I respect is the comprehensive job they did in locating all the gray areas. They went so far as to identify a gray area that didn't pop up until the Equal Rights Amendment crashed and burned a decade later. Even if you find yourself in disagreement with their vision, it's worth reading to see the view of the ruling class toward the process.

Report of the ABA Special Constitutional Convention Study Committee

[xzins]

I, too, am coming to the opinion that a convention of the states is worth a shot. We’re being ruled by an oligarch, anyway, as Scalia so ably points out. The one safety valve in the convention of the states is 75% ratification.

13 states can block anything, good or bad. Surely there are 13 states who would oppose giving away the farm???

FWIW, I agree with you about the 17th amendment.

[xzins]

**Alabama
**Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
**Idaho
Illinois

**Indiana
Iowa
Kansas
**Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
**Mississippi
Missouri
**Montana

**Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
**Oklahoma
Oregon
Pennsylvania

Rhode Island
**South Carolina
South Dakota
**Tennessee
**Texas
Utah
Vermont
Virginia
Washington
**West Virginia
Wisconsin
Wyoming

[MarchonDC09122009]

“We are witnessing a runaway Government every day of our lives. How could an Article V convention of the States be any worse? I fail to see it.”

The Article V process will be co-opted by state legislators beholden to / will capitulate to Obola aligned leftists and result in monstrosity.
Can anyone actually imagine leftist groups, media, academia, entertainment industry, big business, and foreign interests Not trying to influence enmass Article V proposal language and vote outcomes?
Anyway, a Article V convention will be successfully painted as a radical states right movement which will hurt the 47%.
I hate to say it, but I see it as a huge complex waste of political time, capital and limited public attention span.

It’s Far better and faster to show up in Huge numbers with a unified message that threatens the status quo and future election prospects.

A loud solid united conservative revolution movement better come first before any herding cats effort of coordinating a majority of state’s to soberly revise our constitution.
Conservatives need an solid plank, message, and effective messenger that will speak for all of the majority of Americans, that are mad as hell and aren’t going to take it any more.
Point out what a damned shame shape our state is in, and what must happen to correct it.

[Nuc 1.1]

A nice opinion. A few typos. I do not support a constitutional amendment defining marriage. Our problems are far deeper than that. The author is quite correct about repeal of the 17th. Additionally we need an amendment allowing a majority of the state legislatures to nullify Supreme Court decisions. There is simply no other recourse to address Supreme Court tyranny. Both of these proposed amendments have a very difficult road to ratification. The linchpin of the left’s power is the SCOTUS. All of their other victories were made possible by Supreme Court dictates. And the court protects those dictates. Don't kid yourself, there was never any concern about the constitutionally of their major decisions on the part of liberal judges. They just use whatever camouflage needed to impose their will upon the nation. While I fully support the Article V Convention of States, I am very concerned we are far too late implement it. Our state legislatures are too corrupt or in the pawl of the corrupt. Pray folks!

[Cheerio]

It’s Far better and faster to show up in Huge numbers with a unified message that threatens the status quo and future election prospects.

Carl Rove - just elect more Republicans and all will be fine. I CALL BS.

[RKBA Democrat]

Thanks for the article, but it misses a big problem. Anything that a covention of states passes would be subject to ratification by 3/4 of the states. Any meaningful change could be scuttled by 13 states. States like VT, CA, IL, and MA. The math of article V just doesn’t work. That said, I don’t think it’s harmful. So if folks would rather do article V stuff then watch cable, then have at it.

Political change is going to come as a result of the secession of one or more states.

[hosepipe]

Political change is going to come as a result of the secession of one or more states.

---

But first HALT ALL remittances to the federal givernment..
and demand a redress of grievances..
Could Only work if several States did this..

When the feds denied this action.. only one thing then is possible..

[Nuc 1.1]

Actually we elect Pubbies that tell us they agree with us and then support democrat positions, judicial and other nominations, and do not control federal regulators. So most of the people we elect are lying to us straight to our faces. I don’t believe you can blame the people quite as much as is done on FR.

[kvanbrunt2]

“Protests and non violent civil disobedience would likely scare politicians into better behavior.”

check out Charles Murray’s new book “By The People” he outlines how this can be done on a nationwide scale.

[Nuc 1.1]

Not a bad idea. The banks will have to participate or the Feds will simply seize your assets. And most of our tax payments to the Feds are withdrawn by our employers before we ever see it. I believe the Feds think there is no plausible way for the citizens to stage an effective tax revolt. Now if we do have a tax revolt the Feds will simply borrow the money to cover what is lost. I like the idea in principle but there are many holes in the plan that need to be patched up to make a tax revolt effective. And the Feds know it.