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.
At least that's how I read it.
If we are going to re-institute slavery, I've got dibs on you.
Regardless of what ‘the people’ want, wouldn’t the ‘pursuancy’ clause be able to hold the fort intact by itself?
Thanks for taking the time to post this. Well done!
Witness the Prohibition Amendment, and then later, its repeal. The nation could decide that the freedoms of the First Amendment are too much trouble, and repeal that. The genius of the Constitution would die on that day, but that is possible under Article V.
Congressman Billybob
Conyers is where he is because seniority and a district that is both one-party and one-race isolates him from public opinion and the real world. Would a delegate elected from Conyers' district be as outside the mainstream as Conyers? Probably. But without seniority, committee power, or the prospect of reelection, would that delegate have the kind of power possessed by Conyers? No. He would simply be a voice outside the mainstream. There might be other voices like his, or he could end up as just one voice in the wilderness -- that deserves to be kept in the wilderness.
I'd like to go back to a reply I made to another FReeper. A Convention for Proposing Amendments would be such a shock to the system that it would cause delegates to be on their best behavior. I have a difficult time seeing a convention degenerating into an ideological power grab that would be sustained by the states at ratification time.
Just curious, you stated the following:
In 2000 Walker v. US attempted to litigate the issue of the petitions for a convention that had been piling up for 200+ years.
Who is initiating these petitions? Are there any significant ones?
I suppose it depends on what the definition of 'representation' is. Pretty difficult to re-call the wishes of the majority of voters, isn't it?
Whereas a simple phone call to D.C. would have resolved any problems back yonder. I'd say the states yielded their power and lost their checks and balances. Instead of equal partners, the states became siblings of a parent corporation.
Because convention delegates have to be elected, Walker argued (for standing) that he was being denied his right to run for convention delegate by Congress' refusal to call a convention based on 500+ petitions gathered over 200+ years. Walker argued that Congress' 1992 law regulating a convention was unconstitutional because the Convention was a sovereign body free of congressional regulation.
Congressman Billybob explained to me that the flaw in Walker's reasoning was the concept of agency, which Walker did not recognize. Apparently, the federal court agreed.
A few months later, Judge John Coughenor, a Reagan appointee and former constitutional law professor at the University of Washington, dismissed Walker's suit.
What a break for a change!
THANK YOU for this absolutely wonderful and pleasure to read thread.
I guess that depends on how one defines 'pursuance,' non? I don't think the Constitution died, it was the loyalties of those who were sworn to defend, preserve, and protect it.
And I would emphasize, those who were tasked with passing no laws that were not in pursuance. I don't think the founders would hold that the states were destined to become siblings.
The impetus for the direct election of senators came from the political corruption endemic in the post-Civil War era. Corporations "owned" towns, counties and even entire states. As a result the senator from California was often referred to as the "senator from the Southern Pacific Railroad". The Progressive Movement wanted to purge the system of corruption with the following reforms.
The last item was a popular cause of the day. The 17th Amendment easily passed the House, but the Senate always killed it. Then state after state requested a Convention for Proposing Amendments to address this issue. Once the state-count got to within 1 or 2 states of requiring a convention call, the Senate buckled. The states ratified it in very short order.
“I have a difficult time seeing a convention degenerating into an ideological power grab that would be sustained by the states at ratification time.”
I realize that is your view all along and I would like to join you in that with confidence, if I thought I could. It is not any lack of your arguments that prevents me. I see the people and their sentiments in general as lacking in what I believe you and I both would deem necessary. I will say no more and let history take its course. You’ve done a great service in this work of yours. May it someday bear good fruit.
ping
“Regardless of what ‘the people’ want, wouldn’t the ‘pursuancy’ clause be able to hold the fort intact by itself?”
Publius, who started this thread, could tell you better than I if that clause SHOULD “hold”.
Whether or not it should, I am not very fond of testing the public’s will to MAKE it hold, if holding it was needed to prevent some great “public will” (media and Dim driven) that came ramrodding out of a convention, against the rules set for that convention.
Publius has greater respect for “public integrity” of the public in general than I do, and frankly I applaud him for it and truly wish I was less cynical. Maybe I’m older (or feel older).
Thanks for that bit of history, Publius.
I don’t know if the founders intended the Senate to be direct representatives of the people per se. They set up the House of Representatives for that. I’m thinking the Senate was set up to represent the interests of the sovereign states, and to be a check on the “hot heads” in the House, and a check against the executive, and a check against runaway federal government, and (laughing here) a senior body of wizened statesmen of the highest moral character to ensure the longevity of the Republic. As it is now after the 17th, the states have all but lost their sovereign rights and powers and we do have a runaway federal government.
Great thread!
That's my problem too. Thanks for the reply, Wuli. Enjoy reading your remarks.
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