Posted on 04/25/2007 9:35:16 AM PDT by Publius
“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, which, in either Case, 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, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the First Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
– Article V of the Constitution of the United States
The Founding Fathers provided two methods to propose amendments to the Constitution.
The Framers also provided two options for ratifying amendments, and they authorized Congress to decide which option was appropriate. The Supreme Court has ruled that Congress is limited to choosing one of the two options.
One thing is perfectly clear: Article V gives the states assembled in convention the same proposal rights as Congress – no more, no less. And no matter whether an amendment originates with Congress or a Convention for Proposing Amendments, it must be ratified by three-fourths of the states before it can become part of the Constitution.
The Framers’ Safety Valve
Fearing a tyrannical Congress would block the amendatory process, the Framers formulated Article V, wording it so as to fence off the Constitution from hostile or careless hands. They were careful to enumerate Three Forbidden Subjects:
The last Forbidden Subject is implied, rather than explicit, like the first two. The Framers took great pains to avoid using the term “constitutional convention”. Instead, the Founding Document refers to a “Convention for proposing Amendments...as Part of this Constitution”. An Article V Convention is strictly limited to proposing amendments to the Constitution of 1787, and it is forbidden to compose a new constitution. No matter what amendments may be proposed, the Constitution must remain intact, else the actions of the Convention become unconstitutional. Unless Article V is amended first to allow it, a Convention for Proposing Amendments can never become a true constitutional convention, i.e. it can never write a new constitution. And neither can Congress.
How It Would Work
The Founding Document is silent about a Convention for Proposing Amendments, except for establishing its existence and the criterion of its call by Congress. In 1965, a commission of the American Bar Association laid out what could be divined about the Framers’ intent. Then in 1992, after the commotion over the unexpected ratification of the 27th Amendment, originally proposed in 1789, Congress passed a bill reforming its involvement in the amendatory process, to include regulating the petitions for a Convention for Proposing Amendments and regulating the Convention itself.
Who Represents America?
Article I, Section 6 of the Constitution prevents a sitting congressman or senator from taking a seat as a delegate at a Convention for Proposing Amendments unless he first resigns his seat in Congress. It is safe to say that few would be willing to give up the permanent power of Congress for the transitory power of an Article V Convention.
So who would be elected by the states? Yourself, your friends, and your neighbors. All you have to do is run for Convention Delegate. There would be no need for a party endorsement or a campaign war chest. Anyone who raised a vast sum of money or took campaign contributions from vested interests would immediately fall under suspicion. After all, an Article V Convention is about the Constitution, not pork, perks and personal power.
Anyone who wishes to run for Convention Delegate will have to know his Constitution. He will have to take a stand on the subject(s) the Convention is to consider, and he will have to be able to defend that position in public. He won’t be able to hedge, waffle or use weasel words. Most importantly, the candidate for Convention Delegate will have to be a person of integrity, respected in his community.
The conservative caricature of an Article V Convention is a disorderly mob of statists from Massachusetts, welfare recipients from New York, and New Agers and illegal aliens from California. The liberal caricature of a convention is a gaggle of sexually maladjusted theocrats from Mississippi, American Gothics from Indiana, Johnny Rebs from South Carolina and bearskin-clad mountain men from Alaska.
Of course, the Convention will be representative of America at that time and place. All facets of America will be there, and that is as it should be. At an Article V Convention, everyone will have an opportunity to make his case, and everyone will have to lay his cards on the table. It's even possible that the Convention will send no amendment proposals to the states or that the states themselves will choose not to ratify.
So why go through all this?
There has long been fear of a Convention for Proposing Amendments because Americans have never used that tool. To most people, this is uncharted territory. But the Framers and Congress have provided a roadmap. Once the Convention meets, does its business and adjourns, Americans will understand that the Convention is just another tool provided by the Framers. Congress and the political parties will be on notice that the People have found another way.
For that is the beauty of the Constitution of the United States. It is designed to be changed by the People, either through their national government or – should that government fail to satisfy their mandate – through a second system of amendment. The Framers bequeathed the People two methods of amendment so that the government would always be under the People’s control.
There is no reason to fear the Framers’ bequest.
Pinging as requested.
Over the past 40 years, all petitions generated by the states for a convention have been from conservatives. First it was to reverse "One Man/One Vote" for the apportionment of state legislatures. Then it was for a balanced budget amendment. Then it was to reverse Roe. So far the liberals have not managed to generate petitions from the states for their pet causes. This may have something to do with the fact that liberals are uncomfortable with federalism, i.e. states' rights.
The point of the essay is to make clear that a Convention for Proposing Amendments has the same proposal rights as Congress. You don't fear Congress "messing" with the Constitution, do you? Congress has the right to "mess" with it every day.
A convention is the way the states can get around congressional intransigence to propose an amendment on a subject. No more, no less.
The French Enlightenment and the Revolution that followed corrupted the gifts of the English/Scottish Enlightenment and the related American Experiment that followed.
From the time of Athens, all sensible framers and the founders knew that Democracy in its direct form was death even when led by a Pericles.
Conservatives know that preserving our heritage and the forms of value within our culture need change as time passes. But that change is careful and prudent -- Reform as opposed to Revolution.
Perhaps there will come a day where the large majority of our republic understand and value what they have inherited and I would then join such a crafting begun annew. But, with American Idol having such a long season, I don't expect that day too soon.
Key quote:
"The states have submitted more than 500 requests for such a convention to Congress, with the required two-thirds of the states asking for such conventions. The state applications for an Article V convention are registered in the Congressional Record. Congress has violated the Constitution by ignoring these requests. In so doing, Congress has destroyed one of the checks on federal power that the founders had implemented."
I'm not espousing a wholesale tampering. Nor am I espousing crafting a new constitution.
A Convention for Proposing Amendments is merely a way for the states to gather in convention and propose an amendment on a subject predefined in their petitioning language. There would only be wholesale tampering if two-thirds of the states requested a general revision of the Constitution in which any amendment on any subject could be introduced. No one has seriously suggested that in over 200 years.
However, any day that Congress is in session, it can propose any amendment on any topic, to include so many amendments that it would constitute a general revision of the Constitution. Note that something like that hasn't happened since the 13th, 14th and 15th Amendments were introduced in the days immediately following the Civil War.
If you're in fear of a "runaway" convention, Congress has created safeguards to prevent that.
If the states agree on a "general" convention, that's what would occur. But only three times in our history, all by states who were unhappy with the results from Philadelphia, have states sought a general convention.
All other conventions must be specific to the agreed subject. And a call for an amendment to get rid of the UN does not match in subject matter a call for a balanced budget amendment. And Congress is not obligated under Article v to call such a convention until 34 states have agreed on the purpose of that convention.
No such agreement has ever been reached. The article you cite ducks this question, which is decisive.
Congressman Billybob
While legislators are a group of spoiled functionaries, who knows what delegates would look like?
I guess I see the distiction you are trying to make, but seeing the lid lifted on the box that contains the Rule of the Proletariate makes me shudder with the first creak of the hinges.
You are saying that delegates are no more dangerous than Congressmen. That is perhaps true in general but the left is more vigilent in seizing opportunities to seize power than the right is in simply hoping it power can be kept caged up.
(Congressman Billybob, I may need some legal principles enunciated here.)
Congress, from the beginning, chose not to recognize petitions on different subjects enacted at wildly different times. There were two unwritten standards: "single subject" and contemporaneousness. In 1992, Congress finally legislated both concepts into law.
Those two standards -- first unwritten and then later enacted into law -- permitted Congress to collate petitions by single subject and then weigh their timeliness. Part of this is connected with the legal concept of "agency".
The Convention is an agent of the states, and in their petitioning language, the states lay out the issue(s) on which they deputize the Convention to act as their agent. An agent cannot act outside the authority granted him. Under basic concepts of law, the Convention cannot stray from the mandate given it by the states. This is the source of the "single subject" condition.
The commotion over the ratification of 27th Amendment caused Congress, in that 1992 law, to limit ratifications of an amendment by the states to a 7 year shelf life. Congress applied the same rule to petitions for a Convention for Proposing Amendments.
In 2000 Walker v. US attempted to litigate the issue of the petitions for a convention that had been piling up for 200+ years. A federal court in the 9th District dismissed the case.
But due to a combination of the crisis of the time and the respect held for General Washington, Congress decided to let the work of the Convention go to the states for ratification.
Technically, no law was violated and all norms were followed.
Again, I'm attempting to show that a Convention for Proposing Amendments called to address one subject cannot become the "runaway" convention, driven by the rule of the proletariat, that you fear.
As to what a convention would look like in the makeup of its delegates, it would look like America. You might find that a fearful specter to behold, but I'm not all that worried. There is minimal damage that could be done in a single subject convention, and in the end the state legislatures (or ratifying conventions) would be the final judge as to what does and doesn't get into the Constitution.
The Framers set a high bar for amendment for a reason.
I respectfully and politely disagree with your statement. It is truly a statement of "Constitutional" language, from the founders and since; language written to help reduce many fears of a Constitutional or "Constitution amending" convention.
As to actual fears and why, I do think the main fear is not because Americans "have never used that tool".
I believe that the fears have been, when considered, that people do not believe that a convention will actually hold itself to:
"The petitioning language used by the states to request a Convention for Proposing Amendments would define the purview of the Convention...and...The Convention would not be allowed to address any subject outside that language."
or
that a Congress and Supreme Court consisting of majorities not opposed to the extended mandate a convention might try to give itself would intervene simply because that self-extended mandate by the convention was against the rules.
We now, at this moment, have the Democrats in Congress ignoring the Constitution's clear language with regard to representation for the federal jurisdiction of Washington D.C.; acting as if that language either isn't there or can be ignored regardless, and seeking to change the terms of that representation by mere legislation.
What do I need to say about the willingness of a shifting set of 5 of 9 Supreme Court justices to hold themselves, much less anyone else, to the limitations and divisions of powers so clearly laid out in the Constitution.
No my friend, the fear has always been not the design of the founders but whether or not there will be a majority will IN THE PEOPLE to hold such a convention to its Constitutional limits and will that majority be expressed by the existing institutions.
The fear has never been the unknown procedures. The fear has always been will the people have the will to prevent such a Convention from becoming a Pandora's Box, no matter what the rules already say. The fear is that some drive sufficient enough to actually mandate such a convention will be used, by some, and possibly a majority, as a further mandate beyond the protections the founders gave us, and at a time when the institutions that could, by design, block Pandora's box, will refuse to act.
Personally, I prefer individual amendments, one at a time, through the federal and state legislative processes. My own feeling is that if we need a convention, then we need a revolution instead, and yes, I mean one in which we are prepared to fight for what we believe.
John / Billybob
Most objections to a Convention for Proposing Amendments tend to lie in the area of a "runaway" convention that goes beyond the mandate given by the states. First I'd like to look at the tools for keeping the Convention within its constitutional bounds as an agent for the states.
So in order for popular whims to turn the Convention into a "runaway" convention that exceeded its legal authority, we'd need all the following safeguards to fail:
That's a lot of safeguards to fail.
The extremes available to us now are almost repulsive to contemplate. I have some faith in our general citizenry, that is very true. But the general would not make up the specific and the specific would have the "all walks of life" and "include all voices" component that would let the extemes of twentieth century excesses into the mix.
I would like to see deficiencies and missteps corrected. I would like the pride of authorship for my contemporaries to take some pride in each day as the Republic goes forward, but the Congress could pass and amendment and they could pass another to undue it as they have done. Should we have even a modestly broad selection of issues addressed by "the People" I don't see the congress or the people ever being able to undo the damage if mistakes were made, subsiquently recognized and then sought to be addressed.
The winning side in the convention would use their win to delegitamate the challenge, IMHO>
Think for a minute how, within five years of its implementation, the Roe v. Wade decision became so set in stone to be called "the law of the land", the "right to an abortion" and all a permenantly settled matter in the press. Such would be the fate of any misstep.
Thank you guys for being there to straighten out incorrect posts. I read the other one and had alarm bells going off in my head, but thought it would be good to cross-reference for everyone’s benefit. Thanks for clearing things up.
That fear for me is not limited to a constitutional convention.
What prevents the House from impeaching the President or Vice President? Evidence? nope, they make the charge and evaluate the evidence. Legal definitions? No, they are not bound by any legal definition, and can define any action to meet the qualification for impeachment.
The ONLY thing that stops an impeachment is the fear of the majority that performing an impeachment might be politically unpopular -- i.e. they might be voted out of office.
If a vast majority of the people are tired of the president, the house can impeach on majority vote and that majority will probably be re-elected for their efforts.
And if in the Senate the opposing party to the president had a large enough majority, or enough of teh president's party was worried about getting re-elected, they could well find guilt by the 2/3rds necesssary.
We could well impeach a President for "not stopping a war when the people were tired of it", even though that obviously is not a "high crime or misdemeanor".
Of course, up until now, the people we elected to office had some concept of a duty higher than themselves to the country, something the democrats lack. I have no doubt that, if they had a 67-member senate caucus, the FIRST order of business would have been a dual impeachment of the President and Vice President.
A good essay, Publius. Intuitively, it’s rational and logical. I’ve read arguments that the Constitution allows itself to be changed from its original intent, such as the 17th Amendment. Do you think that amendment is Constitutionally valid?
* The presiding officer -- who would defy the Convention's mandate and let it "run away".
* The Supreme Court -- which would defy the concept of agency and the 1992 law and let it "run away".
* Congress -- which would validate the "runaway" Convention's unauthorized actions by passing the fruits of the Convention on to the states for ratification.
* Three-quarters of the states -- which would ratify the fruits of the "runaway" Convention even though the Convention had violated the authorization given it by the states in the first place.
I know Publius, "that's a lot of safeguards to fail", and thanks again for spelling out the major "delimiting" acts/actors that must/can/would have to fail, to produce a "run away convention".
Yet, the "Presiding Officer" would, either as the Vice President initially, or as elected by the Convention subsequently, in any conceivable circumstance be chosen by a majority at the Convention. Most likely that majority would also represent the majority that called for the Convention. Yet, we can depend only in that individual's personal integrity being stronger than their ties, interests and allegiance to that majority; if it voted a measure that broke its mandate. If that majority was sourced the same as the present majority in Congress, tell me you would trust some delegate with the integrity of the present House leader of the judiciary committee (John Conyers) to preside and uphold the rules and tell their majority they cannot do what that majority demands? He, Conyers, is not the Chair of that committee because there are so few like him out in the states, from where the delegates would be drawn.
As for the next failure, yes I can easily see a lib majority court (who knows after 2008?) defying the Constitution and the 1992 law, deferring to the self-promoted "mandate" the Convention handed itself. Such a failure should in my view be expected of a lib-dominant court.
After that failure, it becomes as I said - where is the will of the people?? Will the will of the people be behind the self-proclaimed mandates of the Convention or behind those seeking to hold the convention to its Constitutional limits.
Given the propaganda role of the media in developing a "popular mandate" on its own agenda, who can be sure that either Congress or 3/4 of the states will deny the will of such a Convention, regardless of the rule breaking. At this moment, we have states enacting what to me are unconstitutional acts to throw out their own citizens electoral votes and hand those votes to whatever presidential candidate wins the national "popular" vote, no matter which Candidate their citizens voted for. The deference to "popular democracy", to the point of near acclaim for virtual mob rule is already stronger than one would hope that it not be. Get enough media driven polls to bend and demonstrate "the will of the people" to a point of view, and turn those results into a mantra in the media for a "solution" and you NOW AT THIS VERY MOMENT get legislation proposed for it in a very short period of time, even without a Dim majority [Sarbanes Oxley, just to name one].
My fear, and it is joined by many others, is that PURE DEMOCRACY, as opposed to the sentiments of a Republic based on democratic principles, is already - due primarily to leftist indoctrination in academia - stronger in the minds of "the masses" than is prudent for the safeguards that we have been given (vis-a-vis conventions) to work. I feel no personal assurance that the safeguards would be stronger, and the integrity of leading individuals more stable than a convention-generated, media-pushed "popular will" when it came right down to it.
I wish it were not so, and I wish I could view ahead of us, something even dimly equal to the endeavor of our founders and their convention. In my view, our own work has not YET provided the allegiance in public sentiment that would uphold the safeguards. Will we yet educate the people enough? Maybe I can hope we will, with more time.
I am really glad you created the opportunity here for this discussion and I thank you for your well informed standard you started it with.
As repulsive as the era when slavery was the hot topic?
But the general would not make up the specific and the specific would have the "all walks of life" and "include all voices" component that would let the extemes of twentieth century excesses into the mix.
Yet that is exactly what Congress represents today. And it doesn't even matter which party is in control. Congress has the exact same proposal power as a Convention for Proposing Amendments, and following this logic, we are in grave danger from Congress. (OK, maybe there's a point there, as even Mark Twain would have agreed with that sentiment.)
Should we have even a modestly broad selection of issues addressed by "the People" I don't see the congress or the people ever being able to undo the damage if mistakes were made, subsiquently recognized and then sought to be addressed.
We went through that experience with the 18th and 21st Amendments. It was a harsh lesson certainly, but the mistake was finally undone. The fact that we've been bludgeoned before by the Law of Unintended Consequences would, I believe, make a convention just as cautious as Congress in its amendatory power. After all, for the past 30 years, all sort of amendment proposals have been brought up in Congress, but none have passed the bar. The last amendment to be ratified was proposed in 1789, and its ratification was something of a fluke.
Perhaps I'm being naive, but I think a Convention for Proposing Amendments would be such a shock to the system that everyone involved would be on his best behavior lest he cause political dynamite to detonate.
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