As SCOTUS decision on Obamacare sinks in, momentum grows for Convention of States

conventionofstates.com ^ | 6/26/15

[cotton1706]

What would U.S. law be like without the Bill of Rights? Had a convention of the states not taken place in 1789, the Bill of rights would not exist. In the aftermath of the Supreme Court’s latest controversial decision on the Affordable Care Act, such a convention is one goal small-government supporters hope to meet.

Radio host and author Mark Levin has repeatedly advocated for a convention of the states. Now Levin has an ally in former U.S. senator Dr. Tom Coburn, R-Okla., well known in the Senate and blogosphere as the author of an annual report on wasted federal tax dollars.

The call made its way into the grassroots, with activists on social media advocating for a convention. More than 40,000 people follow the Convention of States feed on Twitter. On Facebook, the COS page has 348,000 supporters. States may also be keen on the idea, with 36 state legislatures introducing resolutions to hold a convention.

Coburn penned an opinion column in the May issue of the Ripon Forum magazine (print) to explain why he believes every presidential candidate should be asked a question during the campaigns: Do you support the Convention of the States?

If enough states act, a convention would be one means for reformers to rein in the reach of the federal government. Because the U.S. Constitution provides a means to hold one, doing so could help return the country to its roots of limited federal powers.

[Wilderness Conservative]

I expected photos of every governor in bed with a sheep to materialize just as something is being used against Benedict Roberts.

[Hostage]

PJ - you’re asking an obnoxious chimpanzee to sit down and write like a refined legal scholar. You know they can’t do that. All they can do is act like a chimp and write words that reflect their jumping up and down and screeching.

[Jacquerie]

<>. . . if an amendment were passed that simply says the 17th amendment is hereby repealed, and original language fully restored, what would SCOTUS twist . . . <>

Crickets roar in response.

[Armando Guerra]

I posted this yesterday but I will post it again today in light of today's announced decision. Here is my wishlist. I heard Ted Cruz today mention merit retention for the SCOTUS judges. I added such a section for all Federal appellate judges, including SCOTUS, but warn that section was thrown together without detailed thought or research. I would also only favor it if the 17th amendment can be repealed with the retention vote happening in the Senate only under those circumstances. I would not want a merit retention as part of the popular election nor with the Senate as it is currently.

WHEREAS pursuant to Article V of the U.S. Constitution the Application of the Legislatures of two thirds of the several States may call a Convention for proposing Amendments, which shall be valid to all Intents and Purposes as Part of this Constitution when ratified by the Legislatures of three fourths of the several States, the following Amendments to the Constitution are proposed:

AMENDMENT XXVIII (Repeal of Income Tax)

The sixteenth article of amendment to the Constitution of the United States is hereby repealed.

AMENDMENT XXIX (Repeal of Direct Election of Senators)

The seventeenth article of amendment to the Constitution of the United States is hereby repealed.

AMENDMENT XXX (Marriage Defined)

Marriage in the United States shall consist solely of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman. Congress shall make no law respecting an establishment of alternative unions to marriage. State established alternative unions to marriage shall not be imposed upon other states. No marriage benefits established by Congress may be provided to alternative unions.

AMENDMENT XXXI (Balanced Budget)

Section 1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless two-thirds of the duly chosen and sworn Members of each House of Congress shall provide by law for a specific excess of outlays over receipts by a roll call vote.

Section 2. Total outlays for any fiscal year shall not exceed 18 percent of the gross domestic product of the United States for the calendar year ending before the beginning of such fiscal year, unless two-thirds of the duly chosen and sworn Members of each House of Congress shall provide by law for a specific amount in excess of such 18 percent by a roll call vote.

Section 3. Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year in which--

(1) total outlays do not exceed total receipts; and

(2) total outlays do not exceed 18 percent of the gross domestic product of the United States for the calendar year ending before the beginning of such fiscal year.

Section 4. Any bill that imposes a new tax or increases the statutory rate of any tax or the aggregate amount of revenue may pass only by a two-thirds majority of the duly chosen and sworn Members of each House of Congress by a roll call vote. For the purpose of determining any increase in revenue under this section, there shall be excluded any increase resulting from the lowering of the statutory rate of any tax.

Section 5. The limit on the debt of the United States shall not be increased, unless three-fifths of the duly chosen and sworn Members of each House of Congress shall provide for such an increase by a roll call vote.

Section 6. The Congress may waive the provisions of sections 1, 2, 3, and 5 of this article for any fiscal year in which a declaration of war against a nation-state is in effect and in which a majority of the duly chosen and sworn Members of each House of Congress shall provide for a specific excess by a roll call vote.

Section 7. The Congress may waive the provisions of sections 1, 2, 3, and 5 of this article in any fiscal year in which the United States is engaged in a military conflict that causes an imminent and serious military threat to national security and is so declared by three-fifths of the duly chosen and sworn Members of each House of Congress by a roll call vote. Such suspension must identify and be limited to the specific excess of outlays for that fiscal year made necessary by the identified military conflict.

Section 8. No court of the United States or of any State shall order any increase in revenue to enforce this article.

Section 9. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except those for repayment of debt principal.

Section 10. The Congress shall have power to enforce and implement this article by appropriate legislation, which may rely on estimates of outlays, receipts, and gross domestic product.

Section 11. This article shall take effect beginning with the fifth fiscal year beginning after its ratification.

AMENDMENT XXXII (Term Limits)

Section 1. No person shall serve in the office of Senator more than twice, and no person who has held the office of Senator, or acted as Senator, for more than two years of a term to which some other person served as Senator shall serve in the office of the Senator more than once. But this article shall not apply to any person holding the office of Senator when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of Senator, or acting as Senator, during the term within which this article becomes operative from holding the office of Senator or acting as Senator during the remainder of such term. Senators currently serving at the time of ratification of this article will be subject to this article at the time of their next election.

Section 2. No person shall be elected to the office of Representative more than four times, and no person who has held the office of Representative, or acted as Representative, for more than one year of a term to which some other person was elected Representative shall be elected to the office of the Representative more than three times. But this article shall not apply to any person holding the office of Representative when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of Representative, or acting as Representative, during the term within which this article becomes operative from holding the office of Representative or acting as Representative during the remainder of such term. Representatives currently serving at the time of ratification of this article will be subject to this article at the time of their next election.

AMENDMENT XXXIII (Merit Retention of Supreme Court Justices)

Section 1. The Justices of the Federal Appellate Courts, including the Supreme Court of the United States, will be subjected to a merit retention vote in the United States Senate. The merit retention vote will consist of a vote as follows: “Shall Justice (name of justice) of the (name of the court) be retained in office?” and thereafter the words “Yes” and “No.” The voting Senators will vote in either the affirmative or the negative as to the retention of the Justice. A Justice will be retained only upon receiving the majority of the votes in the Senate in the affirmative.

Section 2. Beginning in the legislative session following the ratification of this amendment, one-third of the Justices of the Federal Appellate Courts, including the Supreme Court of the United States, will be subjected to a merit retention vote in the United States Senate and shall appear on the ballot in alphabetical order. In the following legislative session another one-third of the Justices that had not been subjected to a merit retention vote in the prior legislative session shall appear on the ballot in alphabetical order to be voted on in the United States Senate. In the following legislative session, the remaining one-third of Justices that had not been subjected to a merit retention vote in the prior two legislative sessions shall appear on the ballot in alphabetical order to be voted on in the United States Senate.

Section 3. The process of merit retention shall repeat as stated in Section 2 beginning in the following legislative session and continuing thereafter so that every Justice in the Federal Appellate Courts, including the Supreme Court of the United States, will be subjected to a merit retention vote in the United States Senate every 6 years.

[CA Conservative]

There’s no way you would read through that link so fast.

I've been reading since I was 3 years old, and I speed-read with a very high comprehension rate (my IQ is over 145). So please don't try to tell me I could not read that fast, nor try to imply that I'm not too smart merely because I disagree with your approach. I'm not calling your approach stupid, so kindly do the same courtesy for me, even if you disagree.

With regards to your "specific" amendment, it appears to me that it is quite vague and lacking in detail, and would lend itself to the kind of convenient "interpretation" by SCOTUS that dware seems to be so concerned about.

[Cboldt]

It could abolish SCOTUS altogether, as an institution.

[Political Junkie Too]

I am interested in true debate. That's why I put a specific draft in front of you. Twist 120 years of past proven practice.

This is an example of a structural amendment that is exercised by the States on the Senate. Senators themselves can't ignore it, when the new guy shows up at the office.

-PJ

[CA Conservative]

They could propose new amendments to clarify the language of the first and or the 2nd.. I dare say that WILL be on the agenda of some.

Okay, let's say such an amendment were to be proposed by the convention - can you name 38 states that would vote to ratify such an amendment?

[Publius]

It could even redefine the Supreme Court as being the Chief Justices of the "several states" meeting en banc via the Internet.

[Political Junkie Too]

Clarifications will require clarifications. That's not the kind of amendment that will likely pass muster.

-PJ

[redfreedom]

Your remarks are my fears.

Someone with better Constitution knowledge than I have, please correct me if I am wrong.

But the states can write the amendments via the Convention Of States. The end game is that the sate LEGISLATURES vote on it, right, the same folks that helped write the amendments?

If that is the case, the the MSM, lefties, academia, Hollywood, the DNC, the federal RINO’s have very little control.

So this is a good thing???? Or can the marxists take over??

[TexasTransplant]

Lucy gets to hold the Football again

TT

[Publius]

First, let's parse Article V so that you can perceive how the amendatory process works.

***

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. The states may request a single-subject convention or a general convention open to all subjects. 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. To permit the drafting of a new constitution, this provision in Article V would first have to be repealed; it would be a two-step process.

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

[Bob434]

I can’t find it now, but states formed a coalition and refused to acknowledge a newly passed federal law, and I believe, warned that federal officials were NOT allowed to enforce the law In the state- this was awhile ago, and I can’t even recall the issue now, but the feds had to back down and the law was repealed-

This can happen again- but it would take a massive effort and the states would have to BAN justices of peace, preachers etc from performing gay marriages- IN DEFIANCE of federal law-

[Repeal The 17th]

“...one amendment to cover all of the issue vs. a group of amendments...”
-
I argue with myself about this and remain of two minds on that.

[Bubba Ho-Tep]

Had a convention of the states not taken place in 1789, the Bill of rights would not exist

There was no convention of the states in 1789. There was the constitutional convention in 1787, the state ratification conventions, and the expressed concerns of the anti-federalists, which were addressed when James Madison proposed the Bill of Rights to congress on June 9, 1789.

[Publius]

Correct. And that’s why I think this article shouldn’t have been posted. There are too many things wrong with it. It’s a poor representation of the situation and the history behind it.

[Hostage]

> “With regards to your “specific” amendment, it appears to me that it is quite vague and lacking in detail, and would lend itself to the kind of convenient “interpretation” by SCOTUS that dware seems to be so concerned about.”

I can see what you are now. You may have skimmed it but you didn’t think through it.

SCOTUS can do nothing to Amendment 28 because the States can void any ruling SCOTUS issues and then ignore them from there. The amendment authorizes the States to neuter federal government on any level. The States can get together and 30 or more of them can void a specific ruling of the SCOTUS. And there’s nothing that can be done about it. Voided rulings mean the rulings are treated as if they do not exist; standard legal definition.

Amendment 28 does not rely on the federal government to comply with or enforce it. It’s interpretation and enforcement lies solely with the States. It’s a game changer.

Those that say the federal government won’t follow the 28th have never seen anything like this because it is designed in reverse of everything they’ve ever seen which is to turn jurisdiction over to federal government. The 28th turns jurisdiction over to the States and they alone control the outcome.

The 28th levels the playing field.

No more treating the States like a wimpy little brother. The 28th causes wimpy little brother to grow up and be a very strong equally powerful brother. The federal government will back down.

[dware]

Here is what I would need to get behind Article V:

1. EVERY State that send a delegate MUST INCLUDE, in their Article V resolution, EXACTLY what the delegate can negotiate - not generalities, but specifics. For example, the delegate would be limited to negotiating ONLY specific topics (repeal the 17th Amendment, institute recall of SCOTUS, Traditional Marriage, etc.). Further, the resolution would need to SPECIFICALLY STATE the delegate IS NOT AUTHORIZED to discuss ANY amendments related to the original 10 Amendments. It's my understanding that SOME STATES are doing similar, but NOT ALL STATES. I CANNOT get behind the process until EVERY STATE requesting Article V does this.

2. Term Limits off the table - Like it or not, they restrict free speech. I have no interest in stifling the free speech of others and their votes. Just because the other sides speech is louder, and they win as a result, does NOT mean I will stomp my feet like an petulant child who is upset he didn't get his way and wants to change the rules.

Even at this, I would still be rather iffy on the whole thing, but I would support it. I DO believe Article V is JUST ONE TOOL given to us by the Founders, but in all reality, there are other ways of going about this that we refuse to look at, simply because they would require far too much sacrifice

[DrDude]

No such Convention will ever take place. Our leaders will block any attempt from both D and R. Obama will declare any such Convention as Domestic Terrorism and send in the Military. We get what we wished for. No one wanted to stop Obama, Reid, Pelosi and the Clintons. Now they can’t. Even if they had the opportubity they would pass. Clintons have committed numerous crimes with their Foundation. There is Probable Cause NOW. Not one person or organization will touch them. Obama passes torch to Clintons. End of USA