Posted on 03/27/2014 5:30:57 AM PDT by dontreadthis
“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments,,,”
It is Congress that is charged with calling the Convention,ie time and place, no more no less.
Hmmm, as for Governor Scott's signature, I'm fairly certain it isn't required. The convention application is a memorial and not a bill. But, we'll soon find out one way or the other.
Mostly true, but not 100% true. In the pedantic boilerplate I post to these threads, you can see what minor roles Congress has to play.
***
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.
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:
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:
Implicitly forbidden:
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
OK, it looks like you're right - Congress is commanded by the Constitution to call a convention if the legislatures of 2/3 of the states apply for a convention. There appears to be no wiggle room but politicians and lawyers ALWAYS find things in the Constitution that aren't there. Anyway, it sounds like a rubber stamp deal to me to the point where if Congress drags their feet waiting for a new election of state representatives who would oppose such a convention, then maybe the states should go ahead anyway.
Hamilton trusted the central government more than I do and I usually find myself disagreeing with him. Nevertheless, apparently Congress is commanded by the Constitution to call a convention if the legislatures of 2/3 of the states apply for a convention. There appears to be no wiggle room but politicians and lawyers ALWAYS find things in the Constitution that aren't there. Anyway, it sounds like a rubber stamp deal to me to the point where if Congress drags their feet waiting for a new election of state representatives who would oppose such a convention, then maybe the states should go ahead anyway.
Apparently Hamilton, one of the Founders who tended to lean toward central government power over states' power and who I often find myself disagreeing with, thought it would be a good idea to have Congress call the convention once the legislatures of 2/3rd's of the states applied. Maybe it would be a verification step, but I don't trust those politicians because they know this convention will take money and power away from them. I could see Congress doing everything they could to delay and stall until maybe some new state legislatures were elected who would oppose such a convention. I say if the legislatures of 2/3rds of the states applied and Congress stalls, have the convention anyway on the grounds that Congress (once again) is behaving unconstitutionally.
Maybe this requirement to have Congress actually call the convention is useful as some kind of verification step that the legislatures of 2/3rds of the states actually did apply. But unlike Hamilton, I don’t trust those politicians because they know this convention will take money and power away from them. I could see Congress doing everything they could to delay and stall until maybe some new state legislatures were elected who would oppose such a convention. I say if the legislatures of 2/3rds of the states applied and Congress stalls, have the convention anyway on the grounds that Congress (once again) is behaving unconstitutionally.
Some history is in order here.
By 1967, some 32 states had generated petitions for an Amendments Convention to reverse Reynolds v. Sims and Baker v. Carr, better known as the “One Man/One Vote” decisions from 1962. When the Senate discovered that we were only two states away from an Amendments Convention, all hell broke loose.
Sen. Everett Dirksen, the Illinois Republican, offered a bill to set up the operating rules for an Amendments Convention. Two Supreme Court decisions, Dillon v. Gloss in 1921, and Coleman v. Miller in 1939, gave Congress wide latitude in regulating the amendatory process, provided such regulation did not contravene the plain language of Article V. Dirksen wanted to set up the rules so that things would not get out of hand, producing an infamous “runaway convention’”.
Two Democratic senators from Maryland, Joseph Tydings and Daniel Brewster, argued that Congress could and should ignore some of those petitions because they had been generated by state legislatures that were mal-apportioned by the rules of the Reynolds decision. Both were eventually to go to prison.
The other senator from Illinois, Chuck Percy, a Republican, argued that Congress had to ignore those petitions because an Amendments Convention would be run by the “worst elements in American politics”, by which Percy meant conservatives. Percy would lose his seat in 1980.
The arguments were based on the idea that Congress was a sovereign body, and no court could tell it what to do in its internal processes. But that was before the Powell decision.
Dirksen died in 1969, and his bill died with him, although it was resurrected in various forms by Sam Ervin of North Carolina and Orrin Hatch of Utah. No version was ever enacted into law.
Remember Adam Clayton Powell? He was the black minister and sleazeball congressman from Harlem who was not seated by the House. Powell sued in federal court, arguing that he had fulfilled all the rules of the state of New York to be elected a congressman, and the House had to seat him. If the House wanted to expel him, that was fine, because the Constitution requires a two-thirds vote of the House to toss him out. But the House had to seat him first.
This case went all the way to the Supreme Court, and along the way there were stern warnings from congressional barons that the Court should stay out of this for reasons of separation of powers. The Court’s decision ordered the House about like a lackey, telling the House fo seat Powell, which it did. The House could have impeached the justices who made this decision, but it decided that discretion was the better part of valor. Eventually, the voters of Harlem tossed Powell out and put Charlie Rangel in, where he remains to this day.
The Powell precedent is cited by those who believe that if Congress refuses to call an Amendments Convention after being petitioned by at least two-thirds of the states, then the Supreme Court could order Congress to set a time and place for the convention. Or perhaps the Court could call a convention on its own authority. An activist Court like Earl Warren’s might have taken such action, but I question whether John Robert’s Court would do so. The Court might declare congressional intransigence to be a “political question”, and say that it is up to the voters to replace recalcitrant congressmen and senators if they really want a convention that badly.
I would recommend you go back to that boilerplate post with the links to documents and print those documents off. The ABA document, in particular, looks at all the gray areas and loopholes in the amendatory process.
Thanks Publius, I’ll look at this stuff at my first opportunity.
Read first sentence. “Apply to congress”
Read first sentence. “Apply to congress”. A convention of the states does not require congressional permission or action. (I’m pretty sure)
You will find a thorough analysis of the entire process here:
http://www.scribd.com/doc/126641416/Article-V-Handbook
The Constitution does give Congress a specific role in the COS.
This role is typically described as “ministerial”.
So, while there are gray areas, it seems that the main role Congress would play in an Article 5 amendment process is the determination as to whether the states legislatures or state ratifying conventions would ratify (or fail to ratify) any amendments proposed by the amendment convention. Or am I reading this wrong? If that’s true, I stand corrected in stating that Congress doesn’t play a role. However, it’s still true that Congress would have no real power to prevent an amendment if the amendment convention method is used to propose it.
Of course, the Constitution does state that Congress is to call an amendment convention upon request by 2/3 of the states. From the link you posted, it seems to be a mandatory thing; Congress cannot refuse to call the convention. As a practical matter, though, what happens if Congress shirks its Constitutionally-mandated duty and fails to call the convention (I know, it’s a stretch that Congress might not do its duty, right </sarcasm>). Could a convention meet anyway? Would any amendments from that convention be valid?
Concerning your second point, read Post #29.
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