Posted on 08/05/2010 7:16:14 AM PDT by Publius
Earlier threads:
FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39
ping
I have a question for the constitutional lawyers here.(of which i am not in the legal profession)
If there is a need to amend or create a new amendment to the Constitution, and a Constitutional Convention is called, can other articles and amendments be tinkered with in that same Convention? or do they have to state the purpose of the Convention prior to the vote for a Convention and strictly stick to the purpose?
At present 32 states have petitions in Congress asking for a Convention to address a balanced budget amendment. Should 2 more states send petitions to Congress for a Convention to address a balanced budget amendment, Congress would be required to set a time and place for a Convention to address a balanced budget amendment only. Phyllis Schlafly, Bob Unruh, and other writers who have been trying to whip up hysteria about a possible Runaway Convention have not studied the issue.
If you want a Convention open to address all possible subjects, you need to get 34 states to petition for one. (There are 2 petitions for a General Convention that have been out there since the 1790's, but their "freshness" is subject to debate in Congress and the courts.)
later read
There is one theory that it depends on the applications by the states. If 2/3rds of the states call for a Convention to propose an Amendment that human life starts at conception, say, the convention will be restricted to that and that an amendment proposing to repeal the Second Amendment would be out of bounds. Only if the state applications were open-ended would the Convention have the right to propose anything it wants.
There is the alternative theory that once the Convention meets, everything is on the table right from the start, baby. No matter what the states originally said.
Remember in either case any proposed amendment(s) must still be ratified by 3/4ths of the states. So don't imagine a hypothetical Constitutional Convention as a quick, easy end run around the will of the people.
The states, upon calling the Convention, never used the word "amend". It was the Confederation Congress that used the word "amend", but it had no authority to "instruct" the delegates to the Convention. That right belonged exclusively to the states. All Congress did was muddy the legal water, which is why Madison addresses it.
Please read the entire paper.
Correct, although there have been attempts to define the purview and process of the Convention.
In 1965, the American Bar Association issued a report on whether the "One Man/One Vote" ruling would affect a Convention. From this report came a bill drafted by Everett Dirksen that attempted to set rules for single-subject petitions, freshness of petitions, how delegates to a Convention would be chosen, and the rules of operation of a Convention. Upon Dirksen's death in 1969, Sam Ervin picked up the torch and got it passed by the Senate, but the House refused to consider it. Upon Ervin's retirement, Orrin Hatch picked up the torch, but his last attempt at getting the bill passed ended in 1991 when the Judiciary Committee killed it.
In 2000, William Walker launched Walker v. US, a suit that attempted to force the courts to call a Convention based on the existence of hundred of petitions for different subjects that had been piling up since 1789. (I spent several hundred hours over a two year period editing Walker's brief.) Unfortunately, the federal court in Seattle refused him standing, and so did all higher courts.
At the moment, both arguments can be made. The Principle of Agency would require a Convention to stick to the subject requested by the states, but the idea that the Convention is a sovereign body during the time of its existence would argue for no limits. So you're right. In the end, the legislatures or ratifying conventions of 38 states would decide whether the Convention exceeded its mandate or not.
Note that the Resolution from Congress begins, “Resolved that in the opinion of Congress....” The records of the ratification conventions includes the authority of each state delegation. Only four states limited the authority of their delegates.
Delaware insisted that its delegates demand a continuation of one vote for each state in Congress. Massachusetts and New York both insisted that their delegates only act to amend the Articles of Confederation, not “do what was necessary” in the words of Alexander Hamilton in the Final Report of the Annapolis Convention.
At the end, New York was no longer present. Two of its delegates left on July 10th, never to return. Hamilton did come back to Philadelphia, but since he was not a quorum. NY was officially absent.
Rhode Island was absent. It took no part in the Convention and initially refused even to hold a ratification convention. That leaves Massachusetts. Two of its three delegates, Rufus King and Nathanial Gorham, after communicating with John Hancock and other state leaders at home, decided to exceed their authority, and vote for the new Constitution. The third Massachusetts delegate was Elbridge Gerry (origin of the word “Gerrymander”) stuck to his guns, refused to vote for the new Constitution, and refused to sign it,
So, the argument that the Philadelphia Convention was a “run-away” actually boils down to an argument that two delegates, Gorham and King, were run-aways. The Articles of Confederation give Congress zero authority to call or control a convention.
And now you know the rest of the story.
John / Billybob
Thanks for checking in. You always add a lot to discussions about the Constitution.
I have a cool-aid drinking sister-in-law who insists the Constitution is a living document. I know their methods for hijacking. I've always believed that the Constitution is "living" to the extent that it takes 2/3 to call the convention and 3/4 to ratify. However, I've always been afraid to mention having a Constitutional Convention to make it "living" for fear they will hijack our way of life and make major radical changes. But this clears up a lot. So, 2/3s need to call for either a particular amendment/modification which in essence would limit the convention to just that purview, or it would have to call for a General Convention, in order to change/add anything, which hasn't happened. Then and only then could any changes/mods be made IF 3/4 states ratify.
Hope I got that right.
If the Constitution is alive but lacking in some way, the Amendment section of the Constitution is available.
But in fact she means that the Constitution is dead.
“The only topic here is whether there was a meaningful way to fix the Articles of Confederation without starting all over. Build a case, if you can!”
Improvements to the Articles were introduced by William Patterson of NJ early in the convention.
http://www.usconstitution.net/plan_nj.html
Notice in #6 the phrase, “any thing in the respective laws of the Individual States to the contrary notwithstanding.”
Near identical words appear in Article VI of the Constitution. It is a puzzling phrase that has always appeared to me to give states the negative on federal law.
Yes. Close enough for government work.
Exactly. The "living document" argument is, essentially, the limitless reinterpretation of a static document whose safeguards prove inconvenient to social reformers. Who wants to go through the process of amendment, review, and ratification when one can simply get a sympathetic judge to rule that what says night is actually day?
I think your post raises a good point. If we elect judges who declare that red is gray and yellow is white then there is no constitution, living or otherwise.
Exactly. The "living document" argument is, essentially, the limitless reinterpretation of a static document whose safeguards prove inconvenient to social reformers. Who wants to go through the process of amendment, review, and ratification when one can simply get a sympathetic judge to rule that what says night is actually day?If the Constitution is alive but lacking in some way, the Amendment section of the Constitution is available.But in fact she means that the Constitution is dead.
It follows that the sovereign remedy for a "living" - but actually dead - Constitution is for the states to exercise their amendment power to the full. There being little prospect of attaining a 2/3 majority in both houses of Congress for a project which would defang the ruling class, we are reduced to calling for a constitutional convention.A 3/4 supermajority of states is required to call for a constitutional convention - but since a 3/4 supermajority of states is required to ratify any proposed amendment in any case, the convention approach is actually easier than the congressional one. The great difficulties are:
IMHO those two challenges are really one. They amount to a challenge of using modern communications, esp the internet, to decide a priori what amendment(s) the convention is to vote out. And all 38 states in the group would covenant not to consider any other amendments and to send to the convention only delegates who are committed to a mere pro forma session to rubber stamp the prior agreement.
- to allay fears of a runaway convention, and
- to compose amendment(s) which will command the assent of 3/4 of the state governments and will constitute a real restraint on judicial activism.
I would recommend an amendment which would reduce the number of Justices on SCotUS to five, removing two specific justices from the court - any two, so be that Scalia, Thomas, Alito, and Roberts are not among them (if losing Justice Kennedy were the price of getting rid of one of the reliable liberals, so be it. Even that would move the court to the right, tho it would obviously be better if the two newest justices were the ones to go). But the principle would be established that the states were capable of enforcing their rights - and that would sober up Washington.
Incorrect. It requires the legislatures of two-thirds of the states to force Congress to call a Convention for Proposing Amendments under Article V.
Please re-read Article V.
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