Sowell: 'Messing With the Constitution'

Creators Syndicate ^ | January 12, 2016 | Thomas Sowell

[jazusamo]

In recent years, a small but growing number of people have advocated a convention of states to propose amendments to the Constitution of the United States. The reaction to the proposal has been hostile, out of all proportion to either the originality or the danger of such a convention.

The political left has been especially vehement in its denunciations of what they call "messing with the Constitution." A recent proposal by Governor Greg Abbott of Texas to hold a Constitutional convention of states has been denounced by the Texas branch of the American Civil Liberties Union and nationally by an editorial in the liberal "USA Today."

The irony in all this is that no one has messed with the Constitution more or longer than the political left, over the past hundred years.

This began with Progressives like Woodrow Wilson, who openly declared the Constitution an impediment to the kinds of "reforms" the Progressive movement wanted, and urged judges to "interpret" the Constitution in such a way as to loosen its limits on federal power.

It has long been a complaint of the left that the process of amending the Constitution is too hard, so they have depended on federal judges -- especially Supreme Court Justices -- to amend the Constitution, de facto and piecemeal, in a leftward direction.

This judicial amendment process has been going on now for generations, so that today government officials at the local, state or national level can often seize private property in disregard of the 5th Amendment's protections.

For nearly 40 years, the Supreme Court has been evading the 14th Amendment's provision of "equal protection" of the law for all, in order to let government-imposed group preferences and quotas continue, under the name of "affirmative action."

[jazusamo]

*PING*
Thomas Sowell

[stephenjohnbanker]

Why would the left want to mess with the Constitution, when they are getting away with trashing or ignoring the current one ?

[BenLurkin]

Exactly

[jazusamo]

Right on, FRiend.

[Publius]

Article V ping. Thomas Sowell endorses a Convention of the States.

[wny]

to those who have been advocating a convention of states...be careful what you wish for. think of some of the fools and hacks that could be involved. there's an endless list of imbeciles on the left - and the right for that matter. they'd produce some EU like 500 page monstrosity that would make transgendered toilets a human right.

the Constitution we have is just fine. we should try using it again.

[Publius]

Here is the boilerplate I post to these threads. You'll see why this "500 page new constitution" business is a legal impossibility.

***

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. 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.

Reference works:

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

State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters

[Pearls Before Swine]

Why would the left want to mess with the Constitution, when they are getting away with trashing or ignoring the current one ?

Because, to quote our most prominent leftist, our President, "the Constitution is a charter of negative liberties", which constrains what the government can do to you. Redistribution, for example, is not written into it. The left would love a "from each according to his means and to each according to his needs" phrasing, which would make the general welfare clause more, uh, clear and powerful.

[jazusamo]

Please bump the Freepathon or click above to donate or become a monthly donor!

[EternalVigilance]

I don’t want anybody messing with the Constitution, particularly. I just want some representatives who will keep their oath to support and defend it.

[DH]

“...the American Civil Liberties Union.”

That’s as far as I had to read to go to another post.

Nothing to see here folks, move along.

[tallyhoe]

We can keep hoping it happens!!!

[rockrr]

Hello Publius my old FRiend.

I was on the fence regarding an Article V convention because I was concerned about the horde overrunning us. Anymore my sense is that we should give it a fair hearing - at least as a formality - before we start shooting (of which I am ready, willing, and eager).

What are your thoughts on the possibility of an Article V convention being hijacked by the left?

[conservatism_IS_compassion]

I think there are a couple of things which should be cleaned up:

1. Qualification for presidential/VP candidates should be changed to explicitly require only that the candidates be 35 yo and citizens of 23 years’ standing. The stricture against a ticket with POTUS and VP both from the same state is an anachronism, and should be dropped. The Civil War is a century and a half in the past, and candidates need no encouragement to balance their tickets.

   If there were a way to assure that the POTUS would revere the Constitution and respect the people, Democrats would not allow its adoption as an amendment anyway.

2. The definition of SCOTUS should be fleshed out. First, the number of justices should be fixed. I suggest 11. Second, each POTUS should be able to name SCOTUS justices without Senate confirmation provided that they be named in advance, along with the VP candidate. Third, presidents should name two justices at the start of their tenure, and two more justices if reelected. Justices should go into semi-retirement, at least, according to seniority in order to keep the number of justices constant. And should be brought back from retirement according to seniority (last out, first in) to fill vacancies or to hear cases in which some justices recuse themselves.

I do not favor the adoption of this amendment before Scalia leaves the bench, tho.

[Big Giant Head]

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.

Seems this one is pointless unless we undo the 17th. We currently have two houses of Representatives, with no one to represent the States.

[Cold Heat]

the Constitution we have is just fine. we should try using it again

That ship sailed as legal interpretations were bastardized.

We need to set those interpretations back to where they belong and that takes additional amendments, and perhaps some tweaking of current ones.

As to the approval of some sort of nonsense, it is important to understand that normal amendment rules apply. You still need a 3/4 majority for final approval.

Thus I doubt any extraneous crap would make the grade.

[Cold Heat]

A Convention of the States is just that....Of the States.

Congress and the president is left out of the loop. This all occurs at the convention and then in the State legislatures..The federal govt is not consulted.

[Publius]

By custom, when states apply for a convention, they state subject matter in their applications. Congress, with the assistance of the Archivist of the United States, tabulates the applications by state (row) and subject (column). When a column reaches two thirds of the states, which is now 34, Congress issues a convention "call." This call names the time, place and subject matter. When the states assemble in convention, they are restricted to the subject matter named in their applications and reflected in the call.

Could there be a "runaway convention?" Not if the state delegations honor the language of their state applications.

Is there a "safety valve" in the process? Yes: the fact that 38 states must ratify. Congress determines whether the states will ratify by state legislatures or state ratifying conventions. If just 13 states vote not to ratify, a proposed amendment is dead.

The chief bugaboo is that some combination of liberal states might either stop conservative amendment proposals or pass one of their liberal proposals. The repeal of the 2nd Amendment is the focal point of this fear.

So far, there is not even one single application from a state requesting a convention to repeal the 2nd Amendment. If a convention were called to address Mark Levin's liberty amendments -- 4 have applied so far -- and a delegate from a liberal state were to introduce an amendment proposal to repeal the 2nd Amendment, the convention's presiding officer would gavel it down as irrelevant and a violation of the convention's purpose. If the delegate appealed to the floor, the assembled delegates would vote not to consider it for the same reason.

The best that the Left could do is block conservative proposals if they have enough presence. Right now, enough states are in control of people jealous of their state's rights to prevent this. After all, the purpose of a convention dedicated to liberty amendments is to create amendment proposals that preserve federalism (states' rights) that Congress, jealous of its powers and national powers, would never pass. I don't see the states writing amendment proposals to strengthen the powers of the central government.

I've seen FReepers suggest that Obama would send the army into the convention chamber with bayonets fixed and force them to write amendments stripping the states of their remaining powers. I've seen FReepers suggest that Obama would kidnap the delegates' families and hold them hostage. I've seen FReepers suggest that the central government would impose economic sanctions on the states to bend them to the central government's will. This is all absurd.

A Convention of the States will hold to its stated purpose. If the votes are there, amendment proposals will be generated and sent to Congress. Congress will send them to the states for ratification with instructions that such ratification is to be accomplished by state legislatures or state ratifying conventions. The form of ratification will be observed, and if three fourths of the states agree to ratify a specific proposed amendment, it will become part of the Constitution. (Note: A Convention of the States cannot say, as suggested in a work of fiction, "Hey, we're all here, so let's ratify everything!" It doesn't work that way.)

Once a successful convention convenes, does its work and then adjourns, both Congress and the political parties will be on notice that the people have found a way around them.

The chances of a Leftist takeover are about zero. They just don't have the numbers and the clout within the states.

[pabianice]

>>In recent years, a small but growing number of people have advocated a convention of states to propose amendments to the Constitution of the United States

Someone doesn't know their history. A constitutional convention could repeal most of the Constitution and approve anything they like.