A lot of freepers were well ahead of the curve on that.
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….
A year ago I was strongly opposed to secession of any of the states and thought it was unlikely.
A year later and I think there is a fair chance of secession happening in the next 10 years. The social issues will provide the emotion, but the intractible economic issues (entitlements and amassed debt) will be the driver.
Thank you for recommending the book.
We 53% who pay the bills, need to create, now more than ever a huge groundswell conservative movement that clearly defines what’s going wrong in this country, and what’s needed to fix it.
Good place to start: Halt illegal immigration, cut spending /Nat’l debt, and purge corrupt politicians.
We can’t afford to piss away years trying to get a majority of states to agree on what needs to change in our US Constitution.
A lot of freepers were well ahead of the curve on that.
Be careful for what you ask. Just because you have an Article V convention doesn’t mean that you get what you want. If conducted at the wrong time, instead of getting a better explained 2nd Amendment you might end up with no “right to bear arms.”
And I think that you meant to say 2/3 (.667 or 67%) of the States to advance and 3/4 (.750 or 75%) of the states to ratify.
You think three-fourths (38) of the States would ratify a repeal of the Second Amendment? I don't you could get 38 ratifications for any attempt to repeal or otherwise diminish any part of the Bill of Rights.
I did not say that, and to insinuate such is: BS.
I Never supported Rove, nor do I blindly align with the GOP.
Do we agree that politician behavior is elastic, with a tendency for self interest that is constrained largely by fear of consequence, and to a lesser degree, sense of duty and character?
If a huge amount of people are righteously pissed and cohesively fired up, politician’s behavior yields to demands out of fear.
Do you agree that the only reason why we still have a second ammendment, is because leftist politicians know there would be absolute hell to pay, and rampant civil disobedience to a gun ban?
Do we agree that we’ve lost much of the first, and fourth ammendment because leftist politicians have had no fear of consequence as they chipped away at our freedoms?
Article V Convention efforts are at best a waste of valuable time, and worse since the process won’t be governed by a majority of lawmakers who adhere to a unified solid conservative set of beliefs.
For all of those who strike at the branches of evil, only one strikes at its root.
The US Constitution is not the problem. It is not deficient.
The problem lies with our country not having a citizenry with high moral expectations and subsequent politician’s fearless corrupt behavior.
“Carl Rove - just elect more Republicans and all will be fine. I CALL BS.”
I definitely blame the people. The reason the politicians lie is because of the people and what they think they want to hear. The reason there are RINO politicians is because of RINO voters. One of the reasons the people are so ill informed and become RINO or liberal voters is because of the MSM and education system etc. It is not that lots of these people are necessarily stupid but rather that so many of them are easily manipulated.
76% of the states have supported gay marriage. Is that the 75% is what you want to dicker with the constitution? Until we have more voters persuaded by our arguments and willing to support conservative candidates none of this really matters.
The courts are doing it anyway, so we can call a hail Mary pass or just wait for the currently inevitable.
I agree that the authority granted to Congress by Article III is a plenary power and does not require Presidential approval or is it subject to Judicial review. The power, however, is granted to Congress which is defined in the Constitution as being the Senate and House of Representatives.
A practical regulation would be to require a super majority (2/3 or 3/4) vote of the Supreme Court to overturn a law enacted by Congress or a provision included in a State Constitution.
As to the Article V Convention, opponents always emphasise the fear of an out of control convention eliminating the 2nd Amendment or some other provision we hold dear. Two points on that. First, members of the convention would be appointed by the States which are mostly conservative. It is unlikely that any member of the congress would be appointed. Second, the requirement for ratification by 3/4th of the states would make harmful results quite unlikely just as it would make beneficial results very difficult.
Repeal of the 17th amendment would do more to re-establish the balance achieved by the original framers than any other one act possible.
I congratulate you for thinking outside the box and thank you for your effort. Everything has to start somewhere. Looking for solutions is far better than descending into defeatism.
I believe that of the 76% only around 12 states approved it by vote of the people or act of their legislatures. The remainder was the result of Judicial Action. Good example being the ultra conservative State of California where it was banned by vote of the people but imposed by the Courts.
Yes to a convention of states.
Strictly from an academic exercise, what would you be willing to give up in order to get what you wanted in a new or modified constitution? For example, to abolish abortion as a “right” would you give up free speech on the internet? How about adding term limits on Congress and the SCOTUS. Would you or anyone else compromise away the 2nd amendment. I can’t guarantee that something won’t happen in the future that will turn a majority against the conservative reading of the 2nd or any other of the BoR.
Everything is a risk. Not having an Article V Convention could lead the federal government continuing to erode our rights. The federal government does that all the time and without the need for 38 ratifications.
.....”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.”.......
My concern as well.....there is such corruption within the states themselves!
-PJ
Oh you mean like these..."Huge numbers"...have we not been there done that time and again?...We still got Obamacare...we still got Roe vs. wade....and on and on...the media is not going to give any march visual...so the most that would happen is the politicians step out of their offices and shake a few hands.....nothing changes!
Yes, and we need new officeholders and new justices. And we need defiance.
The Constitution is NOW toilet paper..
NOT will be.. and has been for a long time..
ONLY republicans think it isn’t.. the cowards that they are..
Democrats don’t NOW... and for a long time have merely tolerated the Constitution..
Using it as a base for any kind of revolt is silly in the extreme..
You cannot REVOLT according to the Constitution..
You MUST REVOLT because there IS NO Constitution..
Or a mere vestige of one.. which some believe as silly as they are..
The REVOLT will not be and cannot be according to the Constitution..
IT’S War................. not negotiations.. voting.. an exchange of ideas.. Hair teeth and eyeballs all over the STREETS..
Real live blood and guts War.. balls to the wall...
Not a fancy.. DUEL...
Democrats know that and believe me will easily kill you where you stand.. and sleep well..
Pubbies better get their minds right -OR- there will BE NO War to fight... AND SOON TOO..
The SS and Wehrmacht are TOOLING UP... and they are not playing games..
Forget history and your DOOoooMED to REPEAT IT..
Damn... is there anybody here that been in a WAR... it ain’t pretty..
“THEY” are indeed coming for YOU.... and ME...
I suspect this time they are planning to liquidate several BILLION for mother earth and socialism..
And of course POWER to right thinking people..
You know............... THEM..
****
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