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“A Convention for Proposing Amendments...as Part of this Constitution”
A Publius Essay | 25 April 2007 | Publius

Posted on 04/25/2007 9:35:16 AM PDT by Publius

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To: Publius
Saving the references. Thanks.

Some would say that nanny was conceived sub rosa after Lincoln was killed (perhaps before, as you suggest), sufficiently nurtured during Wilson's term and brought to full term under FDR.

51 posted on 04/25/2007 5:18:27 PM PDT by Eastbound
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To: Lurking Libertarian
You know, now that I reread that with different emphasis I can see your point.

I was reading that as "any (Thing in the Constitution) or (Laws of any State) to the Contrary notwithstanding" when I should have been reading it as "any Thing in the ((Constitution or Laws) of any State) to the Contrary notwithstanding."

This changes everything.

-PJ

52 posted on 04/25/2007 5:24:09 PM PDT by Political Junkie Too (It's still not safe to vote Democrat.)
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To: Political Junkie Too
Most states already have laws in place to elect elect state delegates to a STATE constitutional convention. Election law experts (including me) generally agree that these existing laws will be used for the process of electing delegates to a federal convention.

For this particular point, you will be pleased to know that these laws usually forbid state legislators from running for these positions.

Congressman Billybob

Latest article: "Gun Control, Carolina-Style"

53 posted on 04/25/2007 5:28:06 PM PDT by Congressman Billybob (Please get involved: www.ArmorforCongress.com)
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To: Eastbound
In McDonald's book, you will see how the nanny state began under President Madison after the War of 1812 when the subject of internal improvements came up, i.e. canals and highways. It was known at the time as the Madisonian Platform.

I would recomend Henry Clay: Statesman for the Union, by Robert Remini. Clay absorbed the Madisonian Platform into his own American Plan, a program for high protective tariffs and federal appropriations for internal improvements.

54 posted on 04/25/2007 5:33:38 PM PDT by Publius (A = A)
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To: Publius

Awesome article Publius ... well done.


55 posted on 04/25/2007 5:36:27 PM PDT by Centurion2000 (Killing all of your enemies without mercy is the only sure way of sleeping soundly at night.)
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To: Lurking Libertarian

“If we are going to re-institute slavery, I’ve got dibs on you”
Winnie (my 300 Win mag)says otherwise:-)


56 posted on 04/25/2007 5:45:23 PM PDT by RedStateRocker (Nuke Mecca, Deport all illegals, abolish the IRS, ATF and DEA)
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To: Publius; y'all
Great essay. Thanks..

Its been said that the SCOTUS could 'strike down' an Amendment as unconstitutional. -- And that exact point was argued before them in 1919, in a move to nullify the 18th.

"-- The Supreme Court issued its most sweeping decision concerning the Eighteenth Amendment in June 1920.
Seven cases, each raising fundamental questions concerning the constitutionality of the amendment, were consolidated by the Court and labeled the National Prohibition Cases.

A host of highly regarded attorneys, including Elihu Root, William D. Guthrie, and Levy Mayer, as well as Herbert A. Rice and Thomas F. McCran, attorneys general for Rhode Island and New Jersey respectively, represented the appellants. The oral arguments lasted for five days, an unusually long time for even the most important cases.

The argument of Elihu Root attracted the most attention. The former Secretary of War, Secretary of State, and senator represented a New Jersey brewer.

Root asserted that the Eighteenth Amendment was simply unconstitutional.
Root from the outset opposed the form, spirit, purpose, and effect of the Eighteenth Amendment. He told friends that its denial of personal liberty, its potential for eroding respect for law, and its alteration of the balance between local and national government alarmed him."

Root gave a memorable peroration: 
" --- If your Honors shall find a way to declare this so-called Amendment to the Federal Constitution valid, then the Government of the United States as it has been known to us and to our forefathers will have ceased to exist.
Your Honors will have discovered a new legislative authority hitherto unknown to the Constitution and quite untrammelled by any of its limitations.
You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself.

In that case, Your Honors, John Marshall need never have sat upon that bench." ---"

57 posted on 04/25/2007 8:47:19 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: tpaine
Its been said that the SCOTUS could 'strike down' an Amendment as unconstitutional.

What was the result of that argument?

It seems to me that the Constitution, by definition, is Constitutional. If the process is followed correctly, the resulting amendment must be Constitutional.

You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself.

The Root quote tries to diminish the effort required to amend the Constitution so as to make amending the Constituion sound like a commonplace circumventing of Congress. The very purpose of amending the Constitution is to change the limits already present in it, given that the Constitution was designed as a limiting powers document.

I can see the Supreme Court ruling on Constitutionality of laws passed by Congress or the States, but does the Supreme Court have the authority to strike down parts of the Constitution itself? I wouldn't think so.

-PJ

58 posted on 04/26/2007 5:48:36 PM PDT by Political Junkie Too (It's still not safe to vote Democrat.)
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To: Political Junkie Too
Its been said that the SCOTUS could 'strike down' an Amendment as unconstitutional.

The argument of Elihu Root attracted the most attention. The former Secretary of War, Secretary of State, and senator said that its denial of personal liberty, its potential for eroding respect for law, and its alteration of the balance between local and national government alarmed him:

" --- If your Honors shall find a way to declare this so-called Amendment to the Federal Constitution valid, then the Government of the United States as it has been known to us and to our forefathers will have ceased to exist.
Your Honors will have discovered a new legislative authority hitherto unknown to the Constitution and quite untrammelled by any of its limitations.
You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself.
In that case, Your Honors, John Marshall need never have sat upon that bench." ---"

What was the result of that argument?

The Scotus ignored it, and simply decreed the 18th valid, thereby in effect saying that our individual rights to drink booze can be flatly prohibited by 'majority rule'.

It seems to me that the Constitution, by definition, is Constitutional. If the process is followed correctly, the resulting amendment must be Constitutional.

Think about that idea; -- could 'we the people' re-institute slavery?

The Root quote tries to diminish the effort required to amend the Constitution so as to make amending the Constituion sound like a commonplace circumventing of Congress.

It does? I don't get that idea at all. Root is simply saying that even that major effort cannot justify infringing upon our basic rights.

The very purpose of amending the Constitution is to change the limits already present in it, given that the Constitution was designed as a limiting powers document.

Given that the Constitution was designed as a limiting powers document, designed to protect our rights from gov't infringements; -- does it make any sense to let 'majority rule' amend away those rights?

I can see the Supreme Court ruling on Constitutionality of laws passed by Congress or the States, but does the Supreme Court have the authority to strike down parts of the Constitution itself? I wouldn't think so.

The question before the Court in 1920 was whether 'majority will' can amend the Constitution, depriving us of a basic right. -- Sadly, the Court refused to give us a clear answer.

The people answered, with repeal, 13 years of lawlessness later. Root was vindicated, -- prohibitions "denial of personal liberty, its potential for eroding respect for law, and its alteration of the balance between local and national government", -- was a national disgrace.

59 posted on 04/26/2007 7:09:18 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: RedStateRocker
“If we are going to re-institute slavery, I’ve got dibs on you” Winnie (my 300 Win mag)says otherwise:-)

Should that be the only thing standing between you and slavery? Or do you agree that at least some of the post-BOR amendments were a good idea?

60 posted on 04/27/2007 11:39:49 AM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: tpaine
Think about that idea; -- could 'we the people' re-institute slavery?

Yes, we could. Would we? Never. The idea of requiring two-thirds of each chamber of Congress and three-fourths of all the state legislatures to comply is a sufficient hurdle to keep ideas like slavery from making it to the Constitution. Instead of slavery, ask about defense of marriage. If that successfully makes it to the Constitution via Article V conventions, would it be "constitutional?"

It does? I don't get that idea at all. Root is simply saying that even that major effort cannot justify infringing upon our basic rights.

My only knowledge of the subject was your quote. My first take on it was that Root, defending a brewer, was trying to invalidate the method that the amendment made it to the Constitution, thereby invalidating the amendment. My impression was that he was suggesting that circumventing the Congress was something to fear. To me, when Root says "You will have declared that two thirds of a quorum of... may enact any legislation they please...," he at first lays out the laborious path to enactment and then trivializes it with "any legislation they please." First, it's a sufficiently high hurdle that just "any legislation" is unlikely to pass it, and second, it's a rigorous enough process that it isn't likely to occur that frequently. That's why I said what I did, because it seemed to me that Root ultimately wanted to Court to reject the amendment by rejecting the path of its enactment, by suggesting that it was easier and more likely to happen for any odd legislation that the People wanted.

Given that the Constitution was designed as a limiting powers document, designed to protect our rights from gov't infringements; -- does it make any sense to let 'majority rule' amend away those rights?

First, I'd say that isn't just a majority, but a super-majority. Second, I'd say that majority rule is the basis of how the legislature works, so what's wrong with it here? Third, the Constitution is established by "We the People," so what's wrong with the People having a direct path to amending the Constitution? After all, it is a government by consent of the governed, and one way of reminding the government of that is to let the people also have a path to amending the Constitution. Now, if the people are going to do something stupid and harmful to their rights, that's why you need two-thirds of both chambers of Congress and three-fourths of the state legislatures to concur.

The question before the Court in 1920 was whether 'majority will' can amend the Constitution, depriving us of a basic right. -- Sadly, the Court refused to give us a clear answer.

I'm not sure I follow your original point. Are you against Article V conventions for amending the Constitution? Ultimately, the right to amend our governing document is also a basic right of the people.

-PJ

61 posted on 04/27/2007 1:36:46 PM PDT by Political Junkie Too (It's still not safe to vote Democrat.)
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To: Political Junkie Too
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.

A fundamental premise of parliamentary government is that a parliament cannot bind a future parliament, so no matter how much you try to craft a document that purports to bind future parliaments (i.e., this part of the Constitution cannot be amended), the effort is simply non-binding on future parliaments.

This is interesting for a couple of reasons in our history. First, the Constitution explicitly states that the slavery issue cannot be amended until a future date--I think 1808, or something of the sort.

Second, in an effort to avert the impending civil war, a constitutional amendment was introduced in Congress (by an Ohio senator) that would have purportedly guaranteed--in perpetuity--that slavery would continue in the South. This was the Corwin Amendment, and if you read Lincoln's first inaugural address, he makes a passing reference to it. As I recall, it was ratified in a couple of Northern states, but before it really ever went anywhere the civil war started and the issue became moot.

But I think it is interesting that this amendment was supposed to have been unamendable, and it raises some novel issues. At the end of the day, though, I think the best response is that parliament can't bind future parliaments; thus, any "unamendable" stuff doesn't hold water

62 posted on 04/27/2007 1:52:09 PM PDT by Publius Valerius
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To: Political Junkie Too
I can see the Supreme Court ruling on Constitutionality of laws passed by Congress or the States, but does the Supreme Court have the authority to strike down parts of the Constitution itself? I wouldn't think so.

This is an interesting debate that hasn't been fully explored. Much like my previous post, I would say that parliamentary supremacy rules, and the Supreme Court does not have the authority to strike down a constitutional amendment as unconstitutional.

You may be interested to know that a similar issue was recently (past 10 or 15 years) litigated in Nevada over school funding, I believe. That situation was slightly different because there the Court found that two separate provisions of the Nevada Constitution were contradictory, and eventually, as I recall, held part of the Nevada constitution unconstitutional.

63 posted on 04/27/2007 1:56:56 PM PDT by Publius Valerius
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To: Publius
A big BTT. Bear in mind that the principal difficulty in calling for an Article V convention is that most liberals have never read the Constitution in the first place and are too busy poring over the Bill of Rights looking for that "Everybody Gets Free Stuff" amendment to care.

A wonderful essay, IMHO. Many thanks.

64 posted on 04/27/2007 2:00:20 PM PDT by Billthedrill
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To: Publius Valerius
In California, we routinely have Constitutionally allowed propositions by the people on the ballot, and then the courts routinely strike them down as unconstitutional. It's a game that we play here every two years.

-PJ

65 posted on 04/27/2007 2:05:26 PM PDT by Political Junkie Too (It's still not safe to vote Democrat.)
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To: Political Junkie Too
.

The question before the Court in 1920 was whether 'majority will' can amend the Constitution, depriving us of a basic right. -- Sadly, the Court refused to give us a clear answer.

I'm not sure I follow your original point. Are you against Article V conventions for amending the Constitution?

Of course not. Root was arguing that [constitutionally speaking] such a convention cannot deprive us of inalienable basic rights, as our Declaration makes clear.

Ultimately, the right to amend our governing document is also a basic right of the people.

'We the people' do not have the power to enslave our neighbors.

Yes, we could. Would we? Never. The idea of requiring two-thirds of each chamber of Congress and three-fourths of all the state legislatures to comply is a sufficient hurdle to keep ideas like slavery from making it to the Constitution.

I doubt that. -- History shows us that 'super majorities' are capable of anything.

Given that the Constitution was designed as a limiting powers document, designed to protect our rights from gov't infringements; -- does it make any sense to let 'majority rule' amend away those rights?

First, I'd say that isn't just a majority, but a super-majority.
Second, I'd say that majority rule is the basis of how the legislature works, so what's wrong with it here?

'Whats wrong' is that it could be used to deprive people of inalienable rights, even enslave them; -- and you agree we have a 'right' to do so.

Third, the Constitution is established by "We the People," so what's wrong with the People having a direct path to amending the Constitution?

Nothing, as long as 'we the people' are limited by Article VI to honor our Constitution, as are ~all~ gov't officials. -- Apparently. you contend we are not. Read our Oath of Citizenship. -- All of us are obligated to protect and defend our Law of the Land.

After all, it is a government by consent of the governed, and one way of reminding the government of that is to let the people also have a path to amending the Constitution. Now, if the people are going to do something stupid and harmful to their rights, that's why you need two-thirds of both chambers of Congress and three-fourths of the state legislatures to concur.

Tell it to those who lost their lives to 'super majority' endorsed governments in the 20th century.

66 posted on 04/27/2007 2:43:42 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: tpaine
Nothing, as long as 'we the people' are limited by Article VI to honor our Constitution, as are ~all~ gov't officials.

I think the answer to your question is there. Are delegates to a Constitutional Convention Constitutionally recognized officers under Article VI Section 3? Are electoral college delegates? If so, are they sworn in under Article VI Section 3?

-PJ

67 posted on 04/27/2007 3:03:47 PM PDT by Political Junkie Too (It's still not safe to vote Democrat.)
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To: Congressman Billybob
Ping to #67.

Aren't members of the Electoral College sworn in under Article VI, Section 3? I vaguely remember something like that. Would that also apply to delegates to an Article V Convention?

68 posted on 04/27/2007 3:45:32 PM PDT by Publius (A = A)
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To: Political Junkie Too
--- the Constitution is established by "We the People," so what's wrong with the People having a direct path to amending the Constitution?

Nothing, as long as 'we the people' are limited by Article VI to honor our Constitution, as are ~all~ gov't officials.
-- Apparently. you contend we are not. Read our Oath of Citizenship. -- All of us are obligated to protect and defend our Law of the Land.

I think the answer to your question is there. Are delegates to a Constitutional Convention Constitutionally recognized officers under Article VI Section 3?

Of course, - they would be sworn officials of their respective States; -- are you contending otherwise?

Are electoral college delegates? If so, are they sworn in under Article VI Section 3?

Yep, as state officials, electors would be sworn as per Art VI.

in any case, all of us are obligated to protect and defend our Law of the Land. -- You agree?

69 posted on 04/27/2007 4:01:32 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: tpaine
Of course, - they would be sworn officials of their respective States; -- are you contending otherwise?

No, I'm not. I'm saying that that oath should be enough to satisfy your argument that they would protect the Constitution.

in any case, all of us are obligated to protect and defend our Law of the Land. -- You agree?

In theory, yes, but I wonder where the source of "obligation" comes from. If you're just talking about obeying the law, then everyone who is a resident here has an obligation to live by the law as part of the bond of civil society. If you're talking about changing existing law, people should be free to suggest any change they wish, and then suffer the wrath of society if they are too radical in their ideas.

The oath is given to immigrants (sidebar: how does "I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen" square with dual citizenship?). Are natural born citizens given an oath or do we just assume they will support and defend the Constitution as a part of their birthright?

So, I can foresee people trying to start a grass-roots campaign for an amendment that could be harmful to some, but if it gets that far, then the delegates to a convention who do take an oath have the obligation to stop it.

-PJ

70 posted on 04/27/2007 4:17:41 PM PDT by Political Junkie Too (It's still not safe to vote Democrat.)
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To: Publius
Interestingly enough, the answer to your question is no. That Article says it applies to "Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States...." So it covers everyone in executive and judicial offices, but it does not cover legislative officials outside the state legislatures.

This would exclude the occasional state or federal constitutional convention, and also the roughly 250,000 local and county officials. It is a matter of tradition, not constitutional requirement, that such elected officials use the same form of oath as all others.

Congressman Billybob

Latest article: "Gun Control, Carolina-Style"

71 posted on 04/27/2007 5:05:31 PM PDT by Congressman Billybob (Please get involved: www.ArmorforCongress.com)
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To: Political Junkie Too
-- the right to amend our governing document is also a basic right of the people.

'We the people' do not have the power to enslave our neighbors.

Yes, we could. Would we? Never.
I'm saying that that oath [of office] should be enough to satisfy your argument that they would protect the Constitution.

That oath hasn't worked to date. -- Why do you think it would work at a Constitutional Convention? -- A 'runaway convention' passing amendments repugnant to our liberties, would be subject to the checks & balances in the original document.


In any case, all of us are obligated to protect and defend our Law of the Land. -- You agree?

In theory, yes, but I wonder where the source of "obligation" comes from.

We have the right, the ~duty~ to "alter or abolish" any form of government destructive to our liberties.

If you're just talking about obeying the law, then everyone who is a resident here has an obligation to live by the law as part of the bond of civil society. If you're talking about changing existing law, people should be free to suggest any change they wish, and then suffer the wrath of society if they are too radical in their ideas.

'Free to suggest' re-instituting slavery is a long way from passing an amendment to do so, -- on that we can agree.

The oath is given to immigrants. Are natural born citizens given an oath or do we just assume they will support and defend the Constitution as a part of their birthright?

Those who refuse to support & defend are free to renounce their citizenship at any time, last I looked.

So, I can foresee people trying to start a grass-roots campaign for an amendment that could be harmful to some, but if it gets that far, then the delegates to a convention who do take an oath have the obligation to stop it.

Indeed they do. -- Glad to see you renouncing your 'power' to enslave anyone.

72 posted on 04/27/2007 5:51:34 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: tpaine
Glad to see you renouncing your 'power' to enslave anyone.

Now, now... I never claimed the power to enslave anyone.

Think about that idea; -- could 'we the people' re-institute slavery?

Yes, we could. Would we? Never.

What I hinted at earlier, and we drew out from our dialog, was that even the Article V Constitutional Convention has checks and balances to prevent inhumane or other extreme ideas from reaching the Constitution.

-PJ

73 posted on 04/27/2007 6:03:29 PM PDT by Political Junkie Too (It's still not safe to vote Democrat.)
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To: Congressman Billybob; Publius
Aren't members of the Electoral College sworn in under Article VI, Section 3? I vaguely remember something like that. Would that also apply to delegates to an Article V Convention?
Publius


Billybob wrote:
Interestingly enough, the answer to your question is no. That Article says it applies to "Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States...." So it covers everyone in executive and judicial offices, but it does not cover legislative officials outside the state legislatures. This would exclude the occasional state or federal constitutional convention, and also the roughly 250,000 local and county officials. It is a matter of tradition, not constitutional requirement, that such elected officials use the same form of oath as all others.

Publius, we can see from the above opinion why our Republic is in such danger. -- 250,000 local and county officials do not need to honor our Constitution as the Law of the Land. -- Good grief.

74 posted on 04/27/2007 6:07:35 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: Publius
Title 18, U.S.C., Section 242 Deprivation of Rights Under Color of Law

This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.

75 posted on 04/27/2007 6:29:23 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: tpaine
Your conclusion is absurd. First, I made it clear that state and local officials DO use the same oath, as a matter of tradition rather than requirement. And even if not, the idea that an oath, rather than education and respect, is what binds Americans to their Constitution is contrary to the understandings of all those who wrote and ratified the Constitution, and have sought to preserve it ever since.

Read my next column, “Raising the Edifice.” It is based on a just-discovered text by George Washington. You might learn something.

John / Billybob

76 posted on 04/27/2007 6:40:39 PM PDT by Congressman Billybob (Please get involved: www.ArmorforCongress.com)
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To: Publius
If a faction has the political wherewithall to attain its objectives through the Congressional Method, why would it use the Convention Method?

Under what circumstances would a faction have the political wherewithall to attain its objectives through the Convention Method when it does not have the political wherewithall to attain its objectives through the Congressional Method?

77 posted on 04/27/2007 6:52:37 PM PDT by KrisKrinkle
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To: Congressman Billybob

Read post #75. — Is Title 18 “absurd”?


78 posted on 04/27/2007 6:57:29 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: KrisKrinkle
George Mason was one Framer who was adamant that the convention method be enumerated in Article V. Hamilton was unsure if it was necessary. What Mason believed was possible was that Congress might become so insular and tyrannical that it might block an amendment desired by the People. I'll give you an example.

We can all argue whether the 17th Amendment was a good idea or not. But at the turn of the century the Progessives made it a priority, and the people strongly agreed. The House agreed, but the Senate balked at changing the way it was elected. I've always seen this as a textbook example of what Mason was talking about.

The states began exercising their right under Article V to request a convention to address the issue of the popular election of senators. Had the Senate continued balking, a convention would have been called on the subject. But once the tally was one or two states away from a convention call, the Senate yielded to popular opinion and passed the amendment to the states of ratification. (I'm not going to argue the rightness or wrongness of that amendment here.)

Let me give you another more recent example. During the Reagan era, Congress was in no mood to entertain a balanced budget amendment, so the states began petitioning Congress for a convention to address the subject. The tally got within a state or two, but then the issue fizzled. Had it not fizzled, we would have witnessed the states taking control from Congress and addressing the issue directly via a convention.

Another example. I question whether an amendment extending the 14th Amendment to the unborn -- a human life amendment -- would be a good idea, but today you would have no chance of getting one through Congress. But the states through a convention? That might be more interesting.

Handling illegal immigration or the Kelo decision would also fall into this category. Do you see where I'm going with this?

79 posted on 04/27/2007 7:11:39 PM PDT by Publius (A = A)
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To: Publius; KrisKrinkle
I can also see how the 17th amendment weakened the State's power to call for an Article V convention. Without having Senators on a state's leash, it's easier for the Senate to block the states than it would be prior to the 17th, since the Senators would fear state legislative reappointment power more than fickle and appeasable popular voting.

-PJ

80 posted on 04/27/2007 7:38:50 PM PDT by Political Junkie Too (It's still not safe to vote Democrat.)
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To: Publius
Re the seventeenth amendment (bearing in mind that not having read the history  I'm going by your post)

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?

81 posted on 04/27/2007 9:35:35 PM PDT by KrisKrinkle
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To: Congressman Billybob
To Raise the Edifice (George Washington on the Constitution)
82 posted on 04/29/2007 1:58:24 PM PDT by Publius (A = A)
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To: Publius

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


83 posted on 07/20/2007 8:38:55 PM PDT by gneal
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To: Publius

bttt


84 posted on 12/15/2008 12:28:23 PM PST by TEXOKIE
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To: TEXOKIE
Thank you. Three times (at least) someone has posted that ridiculous article about a convention being imminent, and three times I've tried to correct the record with a link to the essay.

I think you're the first person to bother to read it.

Thank you again.

85 posted on 12/15/2008 12:31:00 PM PST by Publius
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To: Publius

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!


86 posted on 12/15/2008 1:01:58 PM PST by TEXOKIE
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To: Travis McGee
In the 11 years I’ve been on this site, I’ve made it a point to never flame a fellow FReeper. So I’m not going to flame you, but simply ping you to this thread. I’ve admired your work, and I enjoy your comments on threads involving the Gold Clauses of the Constitution, the gold standard and fiat currencies.

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.

87 posted on 12/20/2008 3:44:20 PM PST by Publius
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To: Publius
That's one way it could work, in a polite and rational world. But by far not the only way, in our often mob-psychology driven world of charismatic demagogues. The wording of Article V is loose enough to be interpreted by demagogues the way that I have stated, and the mobs would support that interpretation.

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.

88 posted on 12/20/2008 5:27:47 PM PST by Travis McGee (--www.EnemiesForeignAndDomestic.com--)
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To: Publius

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?


89 posted on 03/06/2010 1:35:43 AM PST by john de herrera
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To: Publius

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.


90 posted on 03/06/2010 4:11:07 AM PST by john de herrera
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To: john de herrera; Congressman Billybob
I spent two years editing Walker’s original 2000 brief, which filled two huge blinders. I helped him file the suit on the day the Electoral College elected Bush.

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.

91 posted on 03/06/2010 12:16:42 PM PST by Publius (Come study the Constitution with the FReeper Book Club.)
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To: Publius
Actually, the convention method of amending the Constitution HAS been used, once. The 17th Amendment -- yes, the one that Glenn Beck and others who condemn the loss of state controls over their Senators -- was passed by the Senate. Ten times, the House had passed that Amendment to make the Senate elected, rather than appointed by the state legislatures. Ten times the Senate had killed the proposal without letting it get out of committee.

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

Don't Tread On Me (9/12 photo and poster"

""I Was in the First Wave'"

92 posted on 03/06/2010 2:18:58 PM PST by Congressman Billybob (www.TheseAretheTimes.us)
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To: Publius
Slight correction. The 1787 Philadelphia Convention in Philadelphia was not called by Congress. The Articles of Confederation gave Congress no such power. The Convention was called by the Report of the Annapolis Convention of 1786, written by Alexander Hamilton at the direction of John Dickenson, President of that Convention.

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

Don't Tread On Me (9/12 photo and poster"

""I Was in the First Wave'"

93 posted on 03/06/2010 2:28:37 PM PST by Congressman Billybob (www.TheseAretheTimes.us)
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To: Publius
Actually, most states have barriers in their own laws against sitting legislators running for positions as members of Conventions. Since the US Constitution is silent on service by state legislators, the way is clear for state constitutions or laws to make that restriction.

John / Billybob

94 posted on 03/06/2010 2:34:18 PM PST by Congressman Billybob (www.TheseAretheTimes.us)
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To: Publius
No. the pending calls for a new Convention were all wiped out in 1992, when Congress recognized that the Madison Amendment had been ratified. It had no time limits in it. Congress established a seven-year rule for state calls for a new Convention. The Supreme Court had previously recognized that a seven-year restraint on state ratifications was a legitimate, housekeeping action.

Bottom line: all the old state calls for a Convention on any subject (including a rejection of any World Court) are nullities.

John / Billybob

95 posted on 03/06/2010 2:48:06 PM PST by Congressman Billybob (www.TheseAretheTimes.us)
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To: Congressman Billybob
Bottom line: all the old state calls for a Convention on any subject (including a rejection of any World Court) are nullities.

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?

96 posted on 03/06/2010 4:19:12 PM PST by Publius (Come study the Constitution with the FReeper Book Club.)
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To: john de herrera; seeker7_dj

Please check the latest posts on this thread. Congressman Billybob checked in and corrected my mistakes, and one was a real doozy.


97 posted on 03/06/2010 10:10:02 PM PST by Publius (Come study the Constitution with the FReeper Book Club.)
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To: Congressman Billybob
I have question abour precedent.

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?

98 posted on 03/06/2010 10:14:18 PM PST by Publius (Come study the Constitution with the FReeper Book Club.)
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To: Publius
No nasty precedent. Then, as well as with the Balanced Budget Amendment which almost triggered the same result, some of the states issued "conditional calls." They said, we demand that Congress pass a proposed amendment which does X (make the Senate elected, pass a balanced budget, whatever). When Congress did act on the 17th Amendment, some of the calls were withdrawn, in their own terms.

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

Don't Tread On Me (9/12 photo and poster"

""I Was in the First Wave'"

99 posted on 03/07/2010 4:33:43 PM PST by Congressman Billybob (www.TheseAretheTimes.us)
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To: Congressman Billybob
Let me probe this a bit further.

...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.

100 posted on 03/07/2010 5:00:14 PM PST by Publius (Come study the Constitution with the FReeper Book Club.)
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