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….
67 States to advance,
75 States to ratify...
How did we get so many States? That’s even more than Obama’s 57!
....”change the Constitution to ‘restore state control over the selection of Senators’.... if we expect the Senate to be the enforcers of the Constitution”.....
I don’t think most of the current Senators care one iotta about the Constitution...rather they see it as something they have to work around or bypass entirely....and anymore they aren’t even concerned one way or the other about anybody stopping them.
So very true, dearest sister in Christ!
Caww, I agree with your frustration.
However, remember, the Tea Party movement was new and barely a year old. Although one Million marched 09/12/2009, and made noise, the trouble is there was not sustained momentum, unified plank, and Ted Cruz-like spokespersons.
The price of liberty is eternal vigilance.
Conservatives need to be a persistent force to be reckoned with.
A strong unified political cultural movement comes first, before an effort to trust 30+ states to agree on passing beneficial conservative constitutional ammendments.
-PJ
.....”A strong unified political cultural movement comes first”.....
I agree but there is no “group” leadership to rally the people...let alone the will to sustain it for long. The Tea Party did not want leadership and it was understood why....but I think they made a mistake not getting strong leaders, like Cruz and others, to move it beyond where it was.
I want to believe it’s possible...I really do...but I cannot see people taking the time needed to carry any movement through to the desired end apart from strong leaders holding it together. Not to mention the time to even bring it together.
We have an election coming...and already Cruz has warned about Article V , that if Congress etc. doesn’t change the sound of that is going to get louder.
I continue to hope that there are those working together behind the scene waiting for the moment when they reveal themselves....Cruz said that the people don’t realize how close we are to taking back our country....I remember those words often.
....” This is why state legislatures need to appoint their Senators”.....
Yes, but is there not just as much political corruption among them as well?
....”We can’t afford to piss away years trying to get a majority of states to agree on what needs to change”.....
That’s true.....so why not do both? Have the convention of states in play as well as a groundswell conservative movement? Why does it have to be one or the other?
Sorry, but I believe that's magical thinking. I've observed the same venality in state legislations as in the congress.
Which Constitution was that? The Constitution before the Bill of Rights was added? The Constitution before slavery was abolished? The idea that there is some "Constitution" that came into existence whole and perfect is belied by history. Just because modern opponents of Article V are historically ignorant as well as confused in the present is not grounds to say that the Framers were confused, or ignorant of history or misguided about the future of constitutional government. Out of their perspicacity they contemplated new amendments.
Much of the resistance on the Right to Article V comes from the NRA who would put the whole nation, the Constitution, the Bill of Rights, at risk of extinction rather than suffer any supposed risk to their precious Second Amendment. They define liberty downward into a corner consisting only of the right to bear arms and would sacrifice all other liberties to defend this narrow patch.
Many of the posters on these threads motivated by Second Amendment concerns are fully familiar with the arithmetic that renders derisory any argument that a convention of the would possibly restrict their precious right (I might add my precious right) to bear arms. The arithmetic is dispositive: only 13 legislative bodies from 13 different states out of 99 legislative bodies from 50 states would be required to defeat any such pernicious amendments. If the confirmation process is to be conducted by state conventions rather than state legislatures, the same arithmetic would apply because if both houses of a state legislature cannot agree on a position, they cannot vote for the amendment. There is no realistic possibility of loss of Second Amendment rights or any right vouchsafed us under the Bill of Rights. Thread after thread reveals that the same posters raise the same objection over and over even though they had been informed of the arithmetic. They simply ignore the arithmetic and repeat their conclusionary language but they rarely reveal their concerns about keeping their guns or other even darker motives.
Do not be deceived by those who conceal their motives.
There is another group of conservatives who oppose attempts to save the Republic through the amendment process and they are those who would actually prefer bloodshed to an orderly constitutional process of reform. These people will never be convinced. They are the kind of people who give excuse to those equally crazy people who presently control our government and who define the greater danger to our security to be domestic terrorists on the right.
There is a group, most prominently identified as the John Birch Society, which favors nullification, interposition, or secession as the solution. The short answer to that proposition is to point hundreds of thousands of graves of Americans who died to preserve the union.
Some object by arguing that the Article V movement is a diversion from more productive avenues of reform. This argument says that the electorate has limited attention span, limited capacity to entertain political ideas. In effect, the argument is that the nation cannot walk and chew gum. I say that an electorate that has passively submitted to the gradual erosion of its liberties in exchange for Obama phones and cable television has plenty of time for whatever catches its fancy. The media knows how to focus the country's attention on irrelevancies and does so routinely. However, the nation is also quite capable in the television age of being transfixed by Robert Bork hearings, the Clarence Thomas hearings, the impeachment of William Jefferson Clinton, the trial of O.J. Simpson, etc. This assumption about the limited attention span of the American people is a question of media savvy not inherent genetic disorders. Just as the media manipulates the people, conservatives should learn how to manipulate the media. Watch Donald Trump.
The most often voiced objection is to say that it simply will not work. I have treated of these objections in an old reply which I reproduce here:
So far it seems to me that opposition to Article V boils down to about four objections:
1. It won't work -so don't bother trying.
2. It won't work, even if it does work, because "they" will undo it, ignore it, or somehow overrule it, so don't bother trying.
3. It will work, but don't try it because it will work only for the other side.
4. No opinion on whether it will work or will not work, but the Constitution we have is just fine so the solution offered by the Constitution itself in Article V should be ignored in favor of redoubling our efforts and doing more of the same every election cycle because this time we will get different results.
That reply concludes with the question: "Which category are you in?"
Stonewall Jackson exhorts us, "never take counsel of your fears." Do not succumb to the counsel of despair. The road is long and arduous, the way clear is not yet apparent, yet we know the destination, the Shining City on the Hill.
Well, nathanbedford, where do you stand?
Last week, Scotus completed a leftist putsch of our feeble republic. The ignorant here at FR offer nothing to stop and reverse our headlong dive into collective misery.
You are absolutely correct, the arithmetic cuts both ways, although more in favor of conservatives but only moderately so. That means that we are at a stalemate situation as far as Article Vis concerned but that means that the left prevails as long as the situation is static because they control the electoral process, the judiciary, the media etc. If our politics proceed as they have, we will drift ever more to the left, ever deeper in debt, ever weaker abroad, ever more divided at home.
The whole idea ofArticle V is to move the game to a new board where the rules favor conservatives more and that new game will occur in the state legislatures. But to break the deadlock we will need some sort of a "Black Swan" event to energize the electorate and breakthrough the inertia which we unfortunately read on these boards even from conservatives and to overcome leftist minority in state legislatures.
As I said in another post, luck goes to the prepared and we have very good reason to believe that some sort of a reckoning cannot be long delayed. While Nathan Bedford's Maxim, "failed socialism does not result in reform but in more socialism," is often true it is also possible that the country will react in common sense against what has been done to us and actually turn toward conservative reforms.
All we can do is try. If we do not try, what will we tell our kids as they survey the wreckage of their country?
Thanks for your reply. I haven’t kept up on your postings, in awhile. Most children today, are fully incapable of recognizing damage to Our Nation, much less- surveying such as comparative fact. The die is cast. Civilization is in for a very, very hard ride.
Add an intro, and your post would make a fine stand alone vanity.
At the risk of casting everyone into deepest despair, I ask if you have seen Marc Steyn's latest article posted only a few steps away from this thread? His assessment of the odds are as accurate as his assessment of the current situation.
Our duty is to soldier on.
Yes and I agree.
Can agree, but it won't be enforced unless the States INSIST. Until States start telling the Feds and the courts to go pound sand, and dare them to come in with guns blazing, it will not get better.
5. An article V will not work because of the math. A 3/4 of states ratification threshold which prevents destruction of the BOR also prevents anything but the most tepid of measures emerging, as at least 1/4 of the states actively support the trajectory we’re currently on. It’s a double edged sword. That is one practical problem.
Another practical problem and another reason I do not support it is because the root issues which are more at the personal level. Conservatives in the US are a minority, and an aging one at that. Our populace doesn’t think in terms of limiting the scope and breadth of governance. They may not be happy with the current set of rulers, but the thought patterns are not focused on looking at ways to reduce that governance, but installing a new set of kleptocrats who will doit better and more efficiently. If that kneejerk tendency to want the government to deal with any and all problems is not corrected, then all of the structural changes in the world aren’t going to matter.
I also do not support it because the black swan events that we are likely to see will render much of this discussion moot. Those events in my view are most likely to be economic. To the extent they are political, they’re going to be tending more towards divorce rather than a new form of reconciliation.
I have no objection to people trying article V.I think it’s generally harmless. Some positives might emerge with regards to education. For me, I don’t think it a wise expenditure of time. Then again I don’t think going to casinos is a wise expenditure of time, either. People are going to go to Harrah’s anyway regardless of what I think.
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