Article V contains a distinct, extra-congressional grant of power to the states. It is not subservient to congress, it is superior to congress, the president and scotus. It is not justiciable.
The federal convention of 1787 specifically removed reference to limiting the state amendment convention to a single topic. Congress cannot legitimately require same subject applications.
There are dozens of applications sitting in a file in the office of the Archivist of the United States. The passage of time does not defeat the efficacy of applications. An application is an application and must be counted.
Just as today, the institutions we lived under in 1775 and 1786 were incapable of self-reform. Both situations demanded extra-governmental action to secure liberty.
Any construction of Article V, including Rep. Steve Stivers’ rule change that gives congress de facto ability to limit or defeat the application process, that renders the constitution unamendable through lawyerly double-speak, is as dangerous now as it was in earlier times.
So which will it be, a repeat of the horror of war, or peaceful resolution?
When we get there, we should begin with the low hanging fruit. The first order of business should be congressional term limits. One or two terms for senators, four for House members.
I would like to offer the following:
Whereas Article V is intended to provide pathways for both the Congress and/or the States to originate Amendments to the Constitution, there should not be and there is no implicit or explicit assumption that either of these pathways should be inferior/superior to the other.
The pathway through which Congress originates Amendments includes committee hearings, committee votes, and floor votes. Congress has no requirement, and moreover there is no consideration that only single subject Amendments are to be considered. In effect, Congress has as many committees as it needs if it wants to consider a wide variety of potential Amendments, whether narrow or broad in scope. Again, the eventual fate of any or all of these potential Amendments is determined in part by committee votes and floor votes.
It should be reasonable to assume that because the States do indeed equally share this “Amendment Origination Power” with Congress, that the States, after having met the 2/3 requirement, will THEN begin deliberations among themselves. Congress’ “Amendment Origination Power” does not require a super-majority vote trigger in order to begin committee deliberations.
There is no indication per Article V that initiation of the States’ “Amendment Origination Power” is dependent upon anything other than the 2/3 requirement. Once triggered, the deliberative process begins in consideration of Amendments both narrow and broad.
Any other understanding of the States’ pathway to an Amendment is an indication that they do not share equally with Congress in the “Amendment Origination Power”.
Great post again.
I agree with you in theory and principle. You are absolutely correct. But when there is conflict, how can it be resolved?
We cannot simply say ‘there can be no conflict’.
As an analogy one can say that private property rights are inviolate. However, when a property owner is run over, invaded, whose house is broken into, what recourse does the property owner have? The obvious ones are sheriffs, courts and self-defense.
If Congress encroaches or violates its limits to states applying under Article V, what is the recourse? What settles the conflict?
The obvious answer is the United States Supreme Court.
And hence the term ‘justiciable’ becomes relevant.
Some other alternatives are civil and state disobedience to federal dictates. I think that is a bit far-fetched. Even farther fetched is a war.
In the case of McDaniel vs. Cochran, we can see what conservatives are up against in terms of federal power and position. But even though that case was a loss for Conservatives, it was not a win for the establishment. It cost them dearly within their own ranks and even their own families. They ceded the moral high ground and in so doing their solidarity is weakened whereas the solidarity of their opponents is strengthened.
Many losses and retreats are net gains when weighed in the balance of weakened will among establishment opponents.
I advocate following general tactics similar to those of Nathanael Greene:
“Excel in dividing, eluding and tiring opponents by long campaigns; in actual conflict force opponents to pay heavily for a temporary advantage, a price that they cannot afford.”
Part of those tactics involve strategic retreats.
In the end, a tireless will, a neverending march leading to a chase where Conservatives are those being chased with Conservatives escaping, regrouping and turning back to launch a quick surprise attack, then running away to escape again, dividing paths of escape, turning back and regrouping, repeating this approach again and again and again, leads to the pursuers exhaustion and weakness.
It is a battle of wills.
The establishment has the advantage in New York and Washington DC. They have the Central Bank, national media as propaganda, unions, dependency (bribery) mechanisms of free stuff, and many federal courts.
Conservatives have the advantage in the countryside and the will to assert Article V. That will to assert Article V will decide the contest.
The way I look at the passage of time issue is the same way congress and the courts have looked at the passage of time issue on Constitutional amendments. There was no time limit on how long it took each of the states to get around to addressing the issue.
To look at it any other-way would be unfair and unnatural with respect to the way our State legislators operate which is NOT on a clock.
Something legislators require an election to operate and many of them still only operate for short times every 2 years. It is unreasonable to expect them to act in less a time than a decade on such an important matter.