“A Convention for Proposing Amendments...as Part of this Constitution”

A Publius Essay | 25 April 2007 | Publius

[Publius]

The 17th Amendment is valid, although I have seen at least one FReeper claim that it violates Article V. The states still have equal representation in the Senate even though the senators are elected by the people of the state, not its legislature.

At least that's how I read it.

[Lurking Libertarian]

now if we got rid of all amendments after the first ten .....

If we are going to re-institute slavery, I've got dibs on you.

[Eastbound]

Regardless of what ‘the people’ want, wouldn’t the ‘pursuancy’ clause be able to hold the fort intact by itself?

[EdReform]

Thanks for taking the time to post this. Well done!

[Congressman Billybob]

An Amendment cannot violate the Constitution because each Amendment, once ratified, becomes as much a part of that document as if it was written in 1787. Read that aspect in Article V itself.

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

Latest article: "Gun Control, Carolina-Style"

[Publius]

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.

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.

[kidd]

Excellent essay. I've been curious about the convention method since the Kelo decision.

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?

[Publius]

I recommend you read Impeachment, by the late Raoul Berger. Although it was published 35 years ago, it still reads well, and I believe it will answer your concerns about the act of impeachment. (I think it's still in print.)

[Eastbound]

"The states still have equal representation in the Senate . . . "

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.

[William Terrell]

You understand that the 14th amendment defines electors now, instead of the several states.

[Publius]

Mr. Walker of Auburn (WA) was a FReeper back in the old days pre 9/11. He was a truck driver who read up on everything available about a Convention for Proposing Amendments and got me interested in the in's and out's of the subject. Mr. Walker spent 6 years writing a legal brief that took two whole binders to contain and filed his suit in federal court in Seattle on the day the Electoral College chose Mr. Bush in 2000. (I helped him file.)

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.

[Gator113]

What a break for a change!

THANK YOU for this absolutely wonderful and pleasure to read thread.

[Eastbound]

"The genius of the Constitution would die on that day, but that is possible under Article V."

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.

[Publius]

In his first State of the Union message to Congress in December 1829, Andrew Jackson suggested 3 constitutional amendments:

1. Direct popular election of senators.
2. Abolition of the Electoral College and the election of presidents by direct popular vote.
3. Changing the word "Republic" to "Democracy" in the Constitution itself.

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.

• Open primary elections.
• Initiative, referendum and recall.
• Direct election of senators to bypass corrupt legislatures.

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.

[Wuli]

“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.

[Miztiki]

ping

[Wuli]

“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).

[Eastbound]

Thanks for that bit of history, Publius.

[Jim Robinson]

"The 17th Amendment is valid, although I have seen at least one FReeper claim that it violates Article V. The states still have equal representation in the Senate even though the senators are elected by the people of the state, not its legislature."

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!

[Eastbound]

"Maybe I’m older (or feel older)."

That's my problem too. Thanks for the reply, Wuli. Enjoy reading your remarks.