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.
But at the turn of the century the Progressives made it a priority, and the people strongly agreed. The House agreed, but the Senate balked
If the Senate balked the Senators would have done so at the will of the State legislatures (elected by the people, bearing in mind that "the people strongly agreed") or if they balked in defiance of that will they would have done so at the risk of being replaced with Senators who would not balk.
If the will of the State legislatures was in defiance of those who elected them, that defiance was at the risk of being replaced with others (elected by the people, bearing in mind that "the people strongly agreed") who would not so defy.
The states began exercising their right under Article V to request a convention to address the issue of the popular election of senators.
For some reason, the states (whatever you meant, I mean the state legislatures here, but that will change) " began exercising their right under Article V rather than replacing the defiant Senators.
For some reason, the states (whatever you meant, here I mean the people who elected the state legislatures, changing as I said I would) " began exercising their right under Article V rather than replacing the defiant State legislators who would in turn replace the defiant Senators.
It is not obvious why the states (given any meaning) would began exercising their right under Article V when they had agreement and authority to attain their ends through appointment (by the legislature) or election (of new legislators) and subsequent appointment of less defiant Senators. The only reason I can think of would have to do with the time it took to get the job done.
Re a balanced budget amendment:
but then the issue fizzled.
In other words, those pushing for the amendment had neither the political wherewithal to attain their objective through the Congressional Method, nor the Convention Method.
Had it not fizzled, we would have witnessed the states taking control from Congress and addressing the issue directly via a convention
But once the tally was one or two states away from a convention call, the Congress could have yielded and passed the amendment, similarly to the way the 17th was passed. That Congress didn't indicates those pushing for the amendment had neither the political wherewithal to attain their objective through the Congressional Method, nor the Convention Method.
Re a human life amendment:
today you would have no chance of getting one through Congress. But the states through a convention?
If the states had the political wherewithal to get such an amendment through a convention, why would they not be able to get it through Congress, electing new Congress members as necessary? If the faction supporting such an amendment is unable to get the kind of Congress critters it needs, what is the reason for thinking it could get the kind of conventioneers it needs?
I am a latecomer to the string but let me put in my two cents worth: The thing that caused the the States to become poor step-children of a national nanny began with the Civil War and the superior strength of the U.S. military forces. Bad move on the part of the South.
For my second “cent,” the people who fear a convention obviously do not follow the Supreme Court very closely. The Court amends the Constitution any time they have the urge and five votes.
Think of Roe v. Wade. Before Roe no right to have an abortion; after Roe there was a right to have an abortion. Call it an “interpretation” of the Constitution if you want to but it is a de facto constitutional amendment
bttt
I think you're the first person to bother to read it.
Thank you again.
You are welcome! I was very worried when I read that we were 2 states away from getting a con con. When I saw your thread, I was very relieved! The thanks actually go to you!
But the basic premise of your response to that thread earlier today is fallacious. So first, I’d like you to read this entire thread, including responses, paying particular attention to Congressman Billybob’s explications of critical points of law. I had John (Billybob) vet this essay because I wanted to be sure I stated everything correctly.
Then I want you to take some time for a beer, promise to never use the term “constitutional convention” again and think about rewriting some of your books.
(Pause for a beer.)
This whole thing is about the fact that around 25 years ago some states asked for a Convention for Proposing Amendments (shorthand = “Article V Convention”) to address the issue of a constitutional amendment that would require a balanced budget. This effort stalled at 32 states, but it appears that we may be close to a 34th state requesting an Article V Convention. For the sake of argument, let’s say that a 34th state finally requests such a convention.
After a lot of grumbling, Congress sets the time and place of the Article V Convention, perhaps “three months hence at the Corn Palace in Mitchell, South Dakota”. Following that, all 50 states hold special elections for the position of Convention Delegate. Each congressional district elects one delegate, and each state elects two delegates at large. In all, there are 535 delegates.
Here in the 1st District of Washington, I file. My district is ultra-liberal, so with 50 liberals filing and with me as the sole conservative, I manage to win a trip to Mitchell. (My impassioned 60 second speech at the so-called “debate” made me a “lock”.)
There being no room at the local hotels, I board with a farm family. Getting up at 4 AM every day to help slop the cows and milk the chickens -– you can see I never set foot on a farm –- I finish with my chores and drive into Mitchell.
At the first session, Vice President Biden chairs the convention until we elect a retired state appeals court judge from Alabama as Convention President. We set up our rules of order and start earning our pay.
In the midst of amendment proposals to address a balanced budget, a delegate from Illinois introduces a whole variety of amendment proposals extraneous to the mandate of the convention. In an impassioned speech he states that President Obama wants a general revision of the Constitution “to reflect modern America” and that it is “our solemn duty to address any and all issues brought forward.” The committee handling amendment proposals rules all his proposals out of order. He appeals to the Convention President and gets a stern lecture on the legal principle of agency as all his proposals are again ruled out of order.
With the US Supreme Court in session to handle questions from the convention floor, the delegate from Illinois files an appeal to the Court. In a short but tartly worded opinion, the delegate from Illinois gets his head handed to him. If he wants an Article V Convention that is open to all possible subjects, he needs to go out and campaign among the state legislatures to get them to petition Congress for one. Two states petitioned for such an “open” convention in 1789, so all he has to do is convince 32 more states to go along with him. (Justice Scalia is seen to be laughing up his sleeve as the opinion is delivered.)
When it comes my turn to speak, I make a long, impassioned speech pointing out that a balanced budget amendment makes no sense if we have a fiat currency that can be inflated at the whim of Congress or the Federal Reserve. In my typical erudite way, I go over our history with fiat currencies, the gold standard, and the Supreme Court’s 1937 decision invalidating the Gold Clauses under a specific threat from FDR. Once the rest of the convention rouses itself from its stupor, I’m ignored.
After a few months, the convention approves a wordy amendment quoting such terms as “GDP”, “deficit spending” and “depression” that makes the proposed amendment meaningless. I vote against it. Then the convention adjourns, I go home to the Seattle suburbs and write a book about the whole experience.
Congress asks the states to ratify via the Legislative Option. During the next seven years, only ten states ratify it. The whole thing turns out to be a big waste of time.
But once people see than an Article V Convention is nothing to fear, they realize they’ve found a way around congressional intransigence. So three years later, when 34 states petition for an Article V Convention to repeal the 16th Amendment, everyone knows what to do.
And I run again.
And this time they listen to me.
In your lovely, polite world, they hold a lovely polite and meaningless convention in South Dakota that amounts to nothing.
In mine, a mob holds a convention during a time of fear an anger in a large urban center, Philadelphia.
I think my version is more likely to happen than yours.
hi there publius, i had some questions for you.
i helped walker get his suit to the supreme court after the ninth circuit agreed with the district court ruling. i was also a founder with walker and former state chief justice thomas brennan of http://www.foavc.org
within the past year that group has done an audit of the congressional record to discover that there have been times where the required number of states have applied, and congress simply ignored: http://foa5c.org/file.php/1/Amendments/071_cg_r_03369_1929_HL.JPG
link to the entire database to date: http://foavc.org/file.php/1/Amendments
my questions are:
1) do you think there is a statute of limitation on that violation of the constitution?
2) what if the 1992 law made by congress to limit a convention is unconstitutional?
i agree will all your points, except you and billybob thinking that the congress, and the executive (vp in this case), and the courts can put their fingerprints on the people’s sovereign power to alter or abolish.
3) is it possible that you and billybob are wrong about this, and that the Article V Convention has been and still is mandated and pending?
oops, sorry. i was able to find your other thread from 2006, and was refreshed on the stance you and billybob take on the 1992 law. thinking this over, and based on many years of blogging and talking about this, perhaps holding the 1992 law up to the anti-conventionists is the best way to get a convention. i agree with you that perhaps at this point, just as a first time out, it’s better to calm fears, and allow the restraints. we agree, what’s more important now is that the kid learns how to ride the bike, if they need training wheels, so be it. let’s just get them on the bike first.
You may remember the TV series “The Paper Chase”, where John Housman as Professor Kingsfield tells his class, “You come in here with minds full of mush, and if you survive, you’ll leave thinking like a lawyer.” Walker’s problem was the same as mine: neither of us had ever been to law school, and we approached the law as laymen, without an adequate understanding of custom and precedent. Congressman Billybob, a constitutional lawyer based in North Carolina, was kind enough to help me think like a lawyer. He also helped ground me in things like precedent, the Principle of Agency and the history of this topic. Had I met Billybob before 1999, I would have bailed from Walker’s project.
Before 1992, Congress set unofficial rules about the criteria for calling an Article V Convention. There was the single-subject criterion and the contemporaneousness criterion. Congress never codified any of this into law because the arbitrariness of it gave Congress more power. Once in the late Sixties and again in the late Eighties, it looked like a single subject might receive convention petitions from 34 states, and Congress went into hysteria trying to determine if it should codify things under the law. Both times the crisis passed, and each time it passed when only 32 states petitioned, and the movement for a convention ran out of steam.
Then the 27th Amendment, proposed in 1789, was ratified in 1992. Congress sued the Archivist of the United States, arguing that the earlier ratifications weren’t “fresh” and needed to be done over. The federal court invoked Coleman v. Miller and told Congress that the federal duty (ratification) had been executed once, which was sufficient. Congress had not inserted a time provision into that amendment in 1789; therefore there was no clock under which ratification had to be accomplished. The court, however, said that Congress could regulate the amendatory process as long as such regulation did not violate the clear language of Article V. Congress’ attempt to appeal the case to higher courts failed.
This is where two separate currents met.
An ABA report from 1965 was aimed at determining whether the “One Man/One Vote” ruling applied to an Article V Convention. Everett Dirksen codified its recommendations into a bill, and when he died, the bill was passed to Sam Ervin, who in turn passed it to Orrin Hatch when he retired. Hatch got it included in the 1992 reforms.
Congress set the rules for petitions to request a convention and codified the single subject criterion it had observed for two centuries. It also codified a contemporaneousness provision to make sure it didn’t get caught unawares like it did with the 27th Amendment. Walker believed the 1992 law was unconstitutional, but I disagree.
To understand why the single subject criterion is constitutional, you have to understand the Principle of Agency. Let’s say you hire me to sell your car, and we have a legal agreement in which I am your agent for that sale. As long as I sell your car, I am within the law. But let’s say I sell your house instead. In doing so, I have violated the agreement, engaged in fraud, and the sale of your house is null and void. You will sue the pants off me for breach of contract, and I may also end up doing time in a state prison.
An Article V Convention is an agent of the states, and the purview of the convention is defined by the language of the petitions for that convention. If the convention goes outside that language, it exceeds the role of agent and violates the law. The 1992 law codifies this, forbids this and has safeguards to prevent this. This is why an Article V Convention called by Congress to address a balanced budget amendment cannot address abortion, gun control, or any other subject. For that, you need 34 states to petition to address that particular subject.
You cannot lump together petitions for a convention that are based on different subjects. It doesn’t matter whether there are 700 or a million petitions sitting out there. Until you have 34 states petitioning for a single subject, you don’t reach the threshold for calling a convention. This is the heart of Walker’s case, and this is where he erred.
Concerning a general convention permitted to address all subjects, two states petitioned for this in 1789 because they didn’t like the Constitution and wanted to start over. Because petitions filed before 1992 are still valid – and always will remain valid – those petitions are still on the record and are immune from the 1992 law’s seven year sunset provision. If 32 more states pile on and demand a general convention, then Congress would have to call one.
As of today, the 32 petitions for a balanced budget amendment all pre-date 1992 and are still considered valid. Recently, two states, Ohio and Wyoming, considered piling on to make #33 and #34, but the legislatures rejected the idea. Had they been the final two states to petition, Congress would have been forced to call a convention to address that subject, and that subject only.
This is where even the great Phyllis Schlafly got it wrong. She and others created hysteria claiming that those two states would open up a general convention that would permit the Left to write a whole new constitution. I spent weeks going from thread to thread trying to stamp out the fires, and I was horrified at just how many FReepers knew nothing about their own Constitution. This is why I lost my temper at the individual who posted the thread based on Walker’s website and its erroneous legal thinking. I have since apologized to him in a FReepmail.
So let me give you the bottom line. You have a reasonable shot at an Article V Convention for a balanced budget amendment because only two more states are required to pull the trigger. But there will be no general convention unless 32 more states pile on to those two petitions left over from 1789, and this time the seven year rule delineated in the 1992 law will apply to those 32 new petitions.
As far as challenging the constitutionality of the 1992 law, only a state would have standing. Yes, I remember Walker’s logic for his having standing, but it was a legal fantasy.
In the meantime, the states had been passing calls for a Constitutional Convention for the purpose of writing its own version of the 17th Amendment. When 32 states had acted, by 1912, the sitting Senators got nervous. A Convention could have provided that all sitting Senators were out in the street to be replaced wholesale.
Notice the final paragraph of the 17th Amendment. It said that the amendment "shall not affect the election or term of any Senator chosen before the Amendment becomes valid...." The number of states who had called for a Convention was enough to trigger a new Convention. Remember we had 47 states then -- Hawaii, Alaska, and Arizona were not yet in the Union.
So, the Senators read the handwriting on the wall, conceded the Amendment, while protecting their jobs until the next election. On paper, the 17th Amendment followed the usual pattern of proposal by Congress followed by ratification by the states. However, the back story shows that this Amendment (which I agree turned out to be a bad idea) succeeded only because of the Convention calls from the states.
Congressman Billybob
The fact that Congress knew it had no power to call or control the 1787 Convention appears in the first seven words of a Resolution Congress passed before that Convention: "Resolved that in the opinion of Congress...." the Convention should be restricted to amending the Articles of Confederation.
Instead, the powers of the "Commissioners" as the Delegates were actually called, was given by the authority of the states which appointed them. In short, Congress was trying to jump aboard and take over a circus parade which had already passed them.
Congressman Billybob
John / Billybob
Bottom line: all the old state calls for a Convention on any subject (including a rejection of any World Court) are nullities.
John / Billybob
Following that logic, had Ohio and Wyoming laid petitions for a convention to address a balanced budget amendment before Congress, those petitions would have been #1 and #2, not #33 and #34. That would mean that Phyllis Schlalfly was not only wrong, but completely out of the ballpark. Thus, only those petitions created since 1992 are valid.
Your information about the 17th Amendment is rather disturbing. Rather than call a convention, Congress passed the 17th Amendment on to the states for ratification. Yet Congress, under Article V, had an obligation to call a convention for proposing amendments.
Other than that, did my magnum opus make sense, and -- more importantly -- did it conform to the law?
Please check the latest posts on this thread. Congressman Billybob checked in and corrected my mistakes, and one was a real doozy.
In 1913, enough states requested a convention on the issue of the direct election of senators to require Congress to call a convention. But Congress didn't. Instead, it sent its own version of a constitutional amendment to the states to defuse the situation.
Because Congress didn't call a convention when the Constitution required it, didn't that set a precedent? Because of that, can't Congress refuse to call a convention the next time 34 states request one?
Mind you, I am not arguing that the 17th Amendment was a good idea. It turns out it was a very bad idea. I am merely pointing out how the process works, when the states choose to force an idea down the throat of a reluctant Congress.
Congressman Billybob
...some of the states issued "conditional calls."
Some states ratified the Constitution on the condition that some kind of bill of rights be ratified later. Madison was later to state that the concept of conditional ratification was nonsensical.
This brings in Coleman v. Miller.
...some of the calls were withdrawn, in their own terms.
Coleman stated that a federal duty, as in the act of ratification, could be executed only once. This was confirmed in the Court's decision in the Eighties in the case of those states that attempted to rescind their ratifications of the Equal Rights Amendment.
I would think that a petition for a Convention for Proposing Amendments would be a federal duty like the act of ratification. Thus, it may be accomplished only once, cannot be rescinded, and no conditions may be attached to it.
If that is the case, then those convention calls were still valid, even after Congress sent the 17th Amendment to the states. Granted, the 1992 law discharged those petitions and nullified them, rendering the whole issue moot. But I'm having problems seeing where the act of ratification and the act of petitioning for a convention are different, and where one would be covered by Coleman and where the other would not.
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