Skip to comments.“A Convention for Proposing Amendments...as Part of this Constitution”
Posted on 04/25/2007 9:35:16 AM PDT by Publius
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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.
"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.
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."
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.
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.
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.
“Regardless of what the people want, wouldnt 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.
That's my problem too. Thanks for the reply, Wuli. Enjoy reading your remarks.
So who would be elected by the states? Yourself, your friends, and your neighbors.
Article I Section 6 only prevents United States officeholders from attending conventions without first resigning their current officers. What's to stop states from sending their own legislators instead of the "common man?" I don't think state assemblymen or senators would need to resign, do they?
The Framers Safety Valve...They were careful to enumerate Three Forbidden Subjects
Where are points 2 and 3 enumerated? I would look to Article VI Section 2 for limits.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Doesn't this say that the supremecy of the Constitution as the law of the land cannot be overridden by amendment? But is this enough to stop a convention from changing the Senate to be 3 Senators from each state? Is that an alteration of the arrangement of equal representation of the states (from 2 to 3)?
“and (laughing here) a senior body of wizened statesmen of the highest moral character to ensure the longevity of the Republic”
LOL. Not so true today.
You are correct about what the Framers wanted, and what they wanted was tied very much to the concept of a republic. But the elections of 1800 and 1828 changed the focus from a republic to a broad-based democracy. That's why Jackson asked for 3 rather revolutionary amendments in 1829.
What's to stop states from sending their own legislators instead of the "common man?" I don't think state assemblymen or senators would need to resign, do they?
Convention delegates must be elected by the people of a state, not chosen by a legislature or governor. Could a state legislator run for delegate? Yes. Would he have to resign his seat in the legislature to run? No. That only applies to federal officeholders.
Doesn't this say that the supremecy of the Constitution as the law of the land cannot be overridden by amendment?
Technically, an amendment altering the Supremacy Clause might be possible because Article V doesn't forbid it. But vitiating that clause would void much of the Constitution and strip it of all enforcement value. It would be one step away from dissolving the Union.
But is this enough to stop a convention from changing the Senate to be 3 Senators from each state? Is that an alteration of the arrangement of equal representation of the states (from 2 to 3)?
As I understand Article V, the states must have equal representation. Three senators from each state would be permissible as much as one senator from each state. It's representation that must be equal.
Yes, I know and now we’re suffering the results of unintended consequences. I believe the framers debated direct elections of the senators and rejected it. In fact, if I recall correctly, the debate over the makeup and method of electing senators was nearly the deal breaker for the entire convention. It’s a shame the later generations didn’t fight the corruption rather than bastardising the system.
Now there's a sentence that resonates! I'd recommend Decision in Philadelphia, by the Colliers, a father-and-son team of historians. There were some at the Constitutional Convention of 1787 who were strongly inclined to favor the power of Congress over the states, particularly Alexander Hamilton. Most of Hamilton's ideas from his 5 hour "grand design" speech failed to make the grade, but some variations survived.
I would also recommend States' Rights and the Union, by Forrest McDonald, a professor of history at the University of Alabama and one of our best historians. (I envy his prose style.) McDonald, who is a Hamiltonian conservative, documents how the Supreme Court under John Marshall changed this focus to favor the federal government. Later the so-called "loose constructionists" pushed in the same direction, as did Henry Clay and Daniel Webster with their understanding of the Union that was significantly different from many, if not most, of the attendees in Philadelphia in 1787.
During the Civil War, Sen. Edward Baker of Oregon told Lincoln that once the rebellion was crushed, the states should be abolished. (Lincoln referred to Baker and some of the other firebrands as "Jacobins".) Fortunately for us all, Gen. Ned Baker was killed in a botched retreat at the Battle of Ball's Bluff, or else he would have been one of the most radical of Radical Republicans in the post-Civil War era.
Read Decision in Philadelphia, by the Colliers. It covers the Constitutional Convention, not by strict chronology, but by "thread". On some days, several different threads would be discussed and see progress, and sometimes threads would intersect. It's the best book I've ever read on that subject.
Agreed. My point is that I think that a state officeholder would have an almost insurmountable advantage over the common man when running for convention delegate. On the other hand, there would be more state delegates than the state legislature could tolerate losing for the duration, so others would have to participate. I would still be suspicious of "ringers."
Technically, an amendment altering the Supremacy Clause might be possible because Article V doesn't forbid it.
I'm asking about Article VI implications.
If you reread Article VI Section 2, I think that actually does forbid amending the supremacy of the Constitution ("... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.") To me, this means that you cannot amend the Constitution so that the Constitution is no longer the supreme law of the land, because that amendment would be a "thing in the Constitution" that would be in conflict with this section.
I'm not aware of any other language in the Constitution that makes such restrictions on what can be amended.
I think that phrase is best understood as meaning anything in the State constitutions.
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