Posted on 04/08/2015 6:00:03 AM PDT by cotton1706
Can a group of states ban together for the first time since 1787 to change the Constitution at a convention? It all comes down to a matter of math and a few important numbers: 5, 27, 34, 38, 535 and 9.
The current debate is about a movement to call a convention of states to propose a balanced budget amendment, instead of leaving that task to Congress.
Article V of our Constitution lays out two ways to amend the current document. One way has been used 17 times since the 10 amendments in the Bill of Rights were ratified in 1791. So far, these 27 amendments have originated in Congress and been sent to the states for approval. Once three-quarters of the individual states ratify an amendment, it becomes the law.
The second method has never been used. It involves petitions from at least 34 states to call a constitutional convention, where one or several amendments are proposed. The amendment or amendments are then sent on to the states, where 38 states are needed for ratification.
If you are really interested in big questions involving constitutional conventions, there is an excellent overview available from Thomas Neale at the Congressional Research Service. It discusses the background of the Article V process and some current movements underway to bring some issues to national prominence using Article V.
Currently, the Balanced Budget Amendment Task Force, a group that tracks petitions, says there are 27 active petitions on this issue that have been filed with Congress. The group is targeting 13 additional states, hoping to get seven states to approve balanced budget resolutions. That magic number of 34 would force the 535 members of Congress to act.
(Excerpt) Read more at news.yahoo.com ...
There is quite a bit of misinformation in this post, although it attempts to be accurate.
One way has been used 17 times since the 10 amendments in the Bill of Rights were ratified in 1791.
Actually the number is 16. James Madison introduced 17 proposed amendments that would function as the Bill of Rights. A good 12 of these were slam-dunked through Congress, and 10 of them were slam-dunked through the ratification process by the states. But two of them languished. One of these two was referred to as the “Salary Grab Amendment” in its day and was proposed by Congress with the 12 of Madison’s original 17, but it wasn’t ratified until 1992, thanks to the hard work of Gregory Watson of Texas.
The second method has never been used. It involves petitions...
Not petitions, but applications. (Thank you, Jacquerie, for straightening me out on that.) A petition comes from a subordinate body to a higher body; it is plea. An application comes from an equal body, and it is a notification that the body intends to exercise a right.
For starters, some states could rescind their amendment applications as the quorum number gets closer to 34 states.
True. Last year, the count for this effort reached 34. Speaker Boehner, House legal counsel and the Archivist of the United States huddled and found 8 applications that had been rescinded by the states that had originally issued them. These rescissions reduced the count to 26. Just recently, North Dakota became the new 27th state to apply for an Amendments Convention to consider a balanced budget amendment.
The Article V Convention presents many questions that Congress would be called on to consider, and perhaps answer, in the event a convention became a serious possibility.
This is where it gets interesting.
According to Madison, the Whole People ratified the Constitution via ratifying conventions. As he saw it, the states were the agents of the Whole People. Thus, the Whole People via their respective states were the parties to the Constitution, not Congress. The Constitution created Congress, not the other way around. Thus, Congress has no say in the matter because an Amendments Convention represents the sovereignty of the Whole People via their states, not the sovereignty of Congress. It is the duty of Congress to set a time and place for the Amendments Convention and then get the hell out of the way of the states. The American Legislative Exchange Committee (ALEC), in their document, referenced in my usual pedantic boilerplate, points this out.
The ruling class, courtesy of the American Bar Association (ABA), in their 1973 document, also referenced in my usual pedantic boilerplate, argues that two Supreme Court decisions (Dillion v. Gloss, 1921, and Coleman v. Miller, 1939) gave Congress wide latitude in regulating the amendatory process provided such regulation did not contravene the plain text of Article V! In my own view, congressional interference in an Amendments Convention would violate the intent of Article V.
One immediate problem would be how Congress would acknowledge of the acceptance of the petitions as meeting the Article V requirement. Critics have pointed out that not all of the petitions have the same wording.
One of the good suggestions out of the ABA Document was that the states, when filing an application, should list the states that had filed similar applications. This would protect the states by preventing Congress from tabulating applications in separate columns due to differences in word choice or punctuation.
Another issue would be the type of conventions called by Congress for the nomination and then ratification of an amendment or amendments.
No on the first, and yes on the second.
An Amendments Convention is the property of the states, not Congress. All Congress is required to do is the ministerial duty of “calling” the convention, i.e., setting the time and place. Congress bows out after that.
Once an Amendments Convention has adjourned and proposed zero, one or more amendments to address the topic, Congress has to decide whether the states will ratify proposed amendments by state legislatures or state ratifying conventions. The last time we used a state ratifying convention was 1933 to ratify the 21st Amendment repealing prohibition, so we have precedent on how that was handled.
Despite trying 22 times between 1973 and 1992, Congress wasn’t able to approve legislative rules for a constitutional convention process.
Painfully true. Sam Ervin of North Carolina got close, but the last attempt, by Orrin Hatch of Utah in 1991, failed to get out of the Senate Judiciary Committee. Note that both Ervin and Hatch were responding to the ABA Document, which assumed that Congress had the power to regulate an Amendments Convention. In the long run of history, we’re lucky they failed.
In the scenario of a balanced-budget amendment convention, Congress would need to establish who can attend the convention to finalize the wording of a single amendment – or if such a convention can propose multiple amendments.
No, no, no! It’s called a Convention of the States for a reason, dammit! Congress extracts the language from the state applications as part of the convention call, along with the time and place, to define the purview of the convention as an agency agreement between the states. After that, Congress gets the hell out of the way until the convention adjourns and reports its proposed amendments back to Congress for disposition.
There are deep political and legal disagreements about these concepts, as well as the proper role of Congress in determining convention rules, so the issues could come down to number 9 – as in the nine Justices of the Supreme Court.
True. I’ve pointed this out in other threads on this topic.
But in one past case where the constitutional convention quorum was almost met, Congress settled the issue in 1912 by passing an amendment that would have been proposed by a national convention anyway. The 17th Amendment was a direct action taken by Congress after states became concerned that the United States Senate appointment process was compromised or tainted. The amendment allowed for the direct election of Senators, and headed off a likely Article V convention.
The House had always passed some version of the future 17th Amendment, but the Senate had always balked. When the state applications hit the required threshold, the Senate acted because it feared an Amendments Convention would propose an amendment that would require the election of the entire Senate by the new paradigm, instead of phasing it in via the three senatorial classes. That phased-in version of the 27th Amendment was slam-dunked through both houses of Congress and ratified quickly.
You’re probably wondering why Congress didn’t call a convention anyway. A number of applications from the states had “discharge clauses” in them that said that if Congress passed such an amendment on to the states for ratification, that application would be considered discharged. There were enough discharge clauses in applications to move the count below the two-thirds threshold, so Congress was able to legally weasel out of calling an Amendments Convention on the subject.
Article V ping. I should have pinged Post #2, so please read it for an analysis of the article.
Thank you for your post. Oklahoma State Rep. Banz spoke to our (local) group about this subject recently, and like your post, his presentation was interesting both from a historical point of view as well as regarding procedure and scope of a Convention of the States.
Please correct my thinking here if it is wrong.
A “Balanced Budget amendment” that originates with the States under Article V is great and I fully support that effort.
That effort if successful would in effect, limit the Federal Governments growth by restricting their “operating budget”.
Here’s where I may be having some trouble.
Tax dollars collected by the Feds are, for the most part, placed into a “General fund”. Then allocated to various Departments based on their budget and budget requests.
These “Departments” are clearly an increasing Government bureaucracy but don’t they “Pass Through” a boat load of money to the States ?
Don’t they give the States money if those States adopt the mandates that are generated from this growing bureaucracy?
I understand “Funded vs. Unfunded” Mandates.
Back in the day, there were states that were threatened by the Feds that if they didn’t adopt a “55 MPH” speed limit their “Highway funds” would be cut off.
I’m certain that the same or similar things are happening with any number of Federal Government agencies.
IMHO, any effective measure to force the feds into a balanced budget will lead to an increase in taxes.
I think a better approach may be the complete opposite of the attempt to starve the Feds of money, but to flood them with money instead. These departments spend most of their time looking for ways to increase their budgets by expanding the number of ways they can hand out money.
The States need to “Just say NO” to both the mandates and the money.
Maybe it will take article V for this to happen, I don’t know.
From my understanding, however, is if a federal department fails to spend the money allocated to them, then their budget gets cut.
You could always enter the Cut, Cap and Balance Amendment touted by Mark Levin, which would make it more difficult to Congress to balance the budget by raising taxes.
If you possess a fiat money system, that debt is your money supply. In a fiat money system, you must keep inflating that debt to survive. If you decrease the money supply, you set off deflation, and you'll collapse the system the way it almost went down in 2008. This is why even "conservative" administrations support increased entitlements, and this is why we have endless war.
If we paid off the national debt, your money, in the form of the bits and bytes in your bank accounts, would disappear. Federal Reserve Notes would become worthless. The money supply, which is based on debt, would dry up.
We're gotten away with all this foolishness because we control the world's reserve currency, and we have the military means to make sure the rest of the world puts up with our malfeasance. The dollar is the only pool of capital in the world deep enough to handle trillions of dollars of transactions every day. As John Connally, Nixon's Treasury Secretary, put it in 1971 when we closed the gold window to foreign payments, "They're our deficits, but they're your problem." This is what permits us to experience that heady sense of instant gratification that has so ruined our national sense of morality.
If we were back on the gold standard, we wouldn't need a balanced budget amendment because the gold standard itself enforces an iron discipline.
Simply put, I see this as a misguided cause.
But here is where it may become useful. When cooler heads prevail, I doubt an Amendments Convention dedicated to a balanced budget amendment would produce an amendment. In other words, it would adjourn without doing anything.
But one good thing would come out of it. We would have all our rules and precedents in place for future conventions. Further, we would have survived an Amendments Convention without a runaway convention or dangerous amendment proposals coming out of it. The people would have greater confidence in the process. Congress and the political parties would be on notice that the states and the people have found a way around them.
It's the second Amendments Convention, dedicated to overhauling the relationship between the states and the federal government, that would be the big one.
I’d like to continue this discussion without it devolving into a debate on “fiat money” etc..
Fundamentally, I agree. But there’s no way on earth we would ever go back to a “Gold Standard”.
I agree that the way our economy is currently structured, and has been structured for a long time, is to have a certain amount of “Manageable inflation”. This structure has a fatal flaw since it assumes not only economic growth, but also assumes that the FEDs can stimulate growth simply by lowering rates.
Let’s set this issue aside for now.
I think your synopsis of a “First run” convention is a very likely scenario.
It’s a “Leap of Faith” IMHO, and somebody needs to go first.
So, my interest and questions remain.
My questions;
Where, exactly do our Federal tax dollars go?
More importantly is “How they get there”.
The Federal Government doesn’t “write” many checks directly to individuals. From what I understand, it is the States that qualify and administer this transfer of money.
I’m not talking about social security benefits but the myriad of other transfers of money that occurs if the states agree to following the ever changing rules that are being established by unelected bureaucrats that need to justify their existence by creating more rules and regulations while simultaneously opening up more potential recipients of the Governments largess in order to claim they are doing what’s best for “The people”.
As an example.
What does the Dept. of Education actually do?
From what I understand, they set standards and send money to those states that adopt those standards.
If the States simply said NO to both the standards and the money we would begin the process of re-establishing States rights that is critically important under our well thought out Constitution.
Objectively, it seems that the Federal government has literally bribed the States into compliance.
Prior to Mark Levin and his advancement of Article V, I felt that secession was the only alternative.
The States must reassert their rights !!!
The States MUST STOP accepting money from the Federal Government. Since this money comes with strings attached.
Please tell me where I’m wrong.
If the states were to say No to the Feds and wanted to keep those programs rolling, the states would have to raise their own taxes drastically. So it is more than the states saying No. The people of the states have to be willing to take less from the Feds. That's a tough nut to crack.
OK.
Granted, and some States are more dependent than others.
I’d like to know exactly “How” dependent they are.
IMHO, this is where the rubber hits the road.
If under Article V, a state can exempt an individual or an entity from being taxed federally for certain activities and tax them at a state level at a substantially lower rate that would help to transition that state away from the feds.
There are plenty of States that are completely “self-sufficient”.
Are there 34 ?
I don’t know.
Probably not. It’s not only money, but will.
So, we are back to secession or a leap of faith?
Or, the other alternative which is submission to the whims of an increasingly tyrannical Federal Government.
You and I know that the writing is on the wall.
It’s only a matter of time.
We need to destroy the Federal Governments influence and its control or accept our role as slaves.
The institutions that the feds own are already virtually inescapable.
Article V and a President like Cruz and a Congress that actually cares about America, may only stall our “Slouching Towards Gomorrah”.
And I’m all for delaying this.
IMHO, ultimately it’s going to take a major crisis that effects everyone in a very personal way before they wake up.
I don't think Publius was proposing a debate on "fiat money". In a way, the use of the term "fiat money" (I do it a lot) has obscured the underlying issue, which is the REPLACEMENT of actual money by debt.
Debt acts a lot like money - it is a wizard medium of exchange - but it's NOT actual money, because it cannot store value.
Whether or not there is "any way on earth" we will have real money again remains to be seen. But it is certain that debt-as-money will not continue, because it never has been able to be sustained throughout human history.
I understand.
When you consider the value of “Assets” held and how that value is leveraged and stepped on by any number of financial institutions because they can, is extraordinary.
My bank deposits are an asset to me, but a liability to my bank unless they can use that money to create a liability for someone else and then it becomes an asset to my bank.
Hypothecation, Re-Hypothecation and the fact that brokers willingly lend securities so they can create an “Asset”.
It’s a house of cards.
You might want to read Reflections on the 82nd Anniversary of the New Deal, which covers some of those points.
Ok, so in between periods.
I think we can all agree on the broad stokes of Government spending and that it needs to be not only constrained but substantially reduced.
I’d like to get into the weeds of the actual mechanics of how Fed money is transferred to the States.
I have a suspicion that many of the “protocols” for these bribes are interconnected. Connected by layers and layers of rules and regulations that not only add an additional cost to the states but are promoting the moral decay of our society at large.
I would like to get into the weeds here.
I need a better understanding of “How” and “Why” this money moves in the way it does.
IMHO, whether it’s article V or another tool, there is something that is holding this machine together that can be undermined very easily.
My game is back on.
Let’s Go Caps !!!!
Let’s Go Caps !!!!!
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