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<h3> Some Thoughts on the Mechanics of the Article V Movement</h3>
vanity | August 16, 2013 | Nathan Bedford

Posted on 08/16/2013 7:37:56 AM PDT by nathanbedford

Some Thoughts on the Mechanics of the Article V Movement

Mark Levin and his new book, Liberty Amendments, has energized the idea of reforming Washington through a convention called for by the states and conducted by the states which offers the hope that the stranglehold on American politics currently concentrated in Washington can be reformed outside of Washington. The predicate for all of this is the assumption that Washington is both incapable and unwilling to reform itself and indeed will be hostile to any efforts from outside to reform it. Movement conservatives believe that our current mode of governance, even where certified constitutional by the Supreme Court, is in fact repugnant to the document. Here are a few thoughts about the mechanics of the process which might be involved in invoking article That V. Please be advised that these thoughts do not reflect any research into the current state of case law except as noted in passing.

Any discussion of the Constitution starts with the text:

Article V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Let's look at the procedure on a step-by-step basis:

1. Two thirds of the states apply to Congress to conduct a convention to propose amendments.

2. Congress "shall" call a convention for proposing amendments.

3. The convention presumably proposes amendments.

4. Congress "may" (or may not?) propose to submit the proposed amendments to a ratification process consisting of the legislatures of the states or of conventions of the states.

5. If three quarters of the states' legislatures or three quarters of the states' conventions ratify such proposed amendments, they become incorporated into the Constitution.

A few observations:

The Constitution is silent about the consequences of Congress failing its affirmative duty ("shall") to call a convention to propose amendments.

As distinguished from the affirmative obligation to call a convention, the Constitution invests in Congress the option to choose either state legislatures or state conventions to ratify or to fail to ratify proposed amendments.

The Constitution is silent about whether the grant of discretion ("may") is a limited grant which limits the discretion to two options, i.e., ratification by legislature or ratification by convention (i.e. whether Congress must choose one or the other), or whether the federal Congress has the unlimited grant of discretion to fail to choose at all. Further, the Constitution is silent as to the remedy if Congress fails to choose at all and the world is left in the dark whether the states should proceed with their legislatures or by conventions.

This becomes relevant because one can easily anticipate a campaign of obstruction if not outright sabotage of the Article V movement which Mark Levin is now championing. For example, since the Democrats control the Senate it is quite likely that the Senate will fail to join with the House to "call" a convention for proposing amendments. Harry Reid will simply sit on the fact that 34 or more states have applied for a constitutional convention. What happens then?

If Congress flatly refuses to obey it constitutional obligation to "call" such a convention, may the states proceed anyway?

Nor should be considered unlikely that the house will fail to join in such a call because we can consider that the House Republicans would not be eager to see their powers reduced by the kinds of amendments Levin has proposed. At the very least, bareknuckle conservatives anticipate passive aggressive resistance from Republicans in the house and they further anticipate Rino sniping from the sidelines in a matter much as we see today concerning the effort to "defund" Obamacare.

It is not clear whether Congress can affix conditions to the operation of the convention such as unrealistic time limits, arbitrary subject matter limitations, or requirements with respect to the nature of the delegation from each state. The Constitution is silent on these issues. If Congress does affix conditions to the subject matter of the convention for proposing amendments, does the convention have to observe them? If the convention chooses not to observe them and produces proposals which are subsequently ratified by 38 states, either in convention or by their legislatures, which do not comply with the restrictions, are the new amendments part of the Constitution?

The Supreme Court has stated in dicta that these are not justiciable questions but political questions so the prospect arises whether any of these difficulties can be resolved by resort to litigation in the courts. From the point of view of Article V movement conservatives who are already proposing amendments to limit the power or at least the tenure of justices, it is probably better if the court does not have supervisory jurisdiction over the process.

Objections have already been raised to this process which cite the danger of a "runaway" convention in which the Constitution is in effect rewritten and a profoundly undesirable form of government emerges, one which is repugnant to conservatives. In rebuttal it is noted that The constitutional convention so envisioned by Article V does not itself change the Constitution, it merely proposes amendments which must be ratified by three quarters of the states, or 38 states.

It is not at all clear that any of the dilemmas raised here will even occur or if they do that they will be resolved by litigation. No doubt new difficulties will be encountered which are not anticipated here. These are offered as food for thought to stimulate discussion.


TOPICS: Your Opinion/Questions
KEYWORDS: constitution
Comments are solicited.


1 posted on 08/16/2013 7:37:56 AM PDT by nathanbedford
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To: nathanbedford

I would think that Mark Levin knows a WHOLE lot about the US Costitution than YOU do(Oh and “nice” Kraut Flag YOU fly)!


2 posted on 08/16/2013 7:46:25 AM PDT by US Navy Vet (Go Packers! Go Rockies! Go Boston Bruins! See, I'm "Diverse"!)
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To: US Navy Vet
I have been a FreeP since around 2001(I got banned back then).

Evidently banned but never rehabilitated.


3 posted on 08/16/2013 7:50:33 AM PDT by nathanbedford ("Attack, repeat, attack!" Bull Halsey)
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To: nathanbedford
Thank you Lt. General for this post. I too have been wondering of the logistics and contingencies for such an operation as I believe we should very much anticipate dogged resistance and obstruction from the establishment political classes.

If, as you elucidate, congress does not initiate a call for an amendment convention can the State governors 'declare' such an event? Why not?

And there is value in repeating the response to those who reject such a convention for the possibility of a runaway train - the states will need to ratify. That's part of the deliberate process embedded in the Constitution.

Thank you for your post. That Navy guy is having a bad day.

4 posted on 08/16/2013 7:54:25 AM PDT by corkoman
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To: nathanbedford

The Article is nonspecific as to time, date, etc. that Congress MAY set for this convention.

So Jan. 13 in Barrow, Alaska is a possibility.


5 posted on 08/16/2013 7:55:33 AM PDT by Buckeye McFrog
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To: nathanbedford

Mark is a standout among conservatives and a man who puts his money and his time to work for the causes he espouses.

But realistically there is no chance at all of getting two thirds of the states to apply to Congress to conduct a convention to propose amendments.

In 2012 only 24 states went republican.

Maybe it could happen after a SHTF collapse and 100 million are dead from race riots and starvation.

But not in the current political climate.


6 posted on 08/16/2013 7:59:08 AM PDT by Iron Munro (To learn who rules over you, simply find out who you are not allowed to criticize - Voltaire)
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To: nathanbedford
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case

I think you've mis-parsed this section:
Case 1 — 2/3rds of both houses deem it necessary to propose amendments.
Case 2 — The Legislatures of 2/3rds of the states say we want to propose amendments.
Both cases then join together on the flow-chart not seen for the rest of the sentence.



But I do have a few amendments that I'd propose.

Tax Reform Amendment
Section I
No tax, federal or state, shall ever be withheld from the wages of a worker of any citizen of either.

Section II
No property shall be seized for failure to pay taxes until after conviction in a jury trial; the right of the jury to nullify (and thereby forgive) this debt shall never be questioned or denied.

Section III
The second amendment is hereby recognized as restricting the power of taxation, both federal and state, therefore no tax (or fine) shall be laid upon munitions or the sale thereof.

Section IV
The seventh amendment is also hereby recognized, and nothing in this amendment shall restrict the right of a citizen to seek civil redress.

Section V
No income tax levied by the federal government, the several States, or any subdivision of either shall ever exceed 10%.

Section VI
No income tax levied by the federal government, the several States, or any subdivision of either shall ever apply varying rates to those in its jurisdiction.

Section VII
No retroactive or ex post facto tax (or fee) shall ever be valid.

Section VIII
The congress may not delegate the creation of any tax or fine in any way.

Section IX
No federal employee, representative, senator, judge, justice or agent shall ever be exempt from any tax, fine, or fee by virtue of their position.

Section X
Any federal employee, representative, senator, judge, justice or agent applying, attempting to apply, or otherwise causing the application of an ex post facto or retroactive law shall, upon conviction, be evicted from office and all retirement benefits forfeit.

Fiscal Responsibility Amendment
Section I
The power of Congress to regulate the value of the dollar is hereby repealed.

Section II
The value of the Dollar shall be one fifteen-hundredth avoirdupois ounce of gold of which impurities do not exceed one part per thousand.

Section III
To guard against Congress using its authority over weights and measures to bypass Section I, the ounce in Section II is approximately 28.3495 grams (SI).

Section IV
The Secretary of the Treasury shall annually report the gold physically in its possession; this report shall be publicly available.

Section V
The power of the Congress to assume debt is hereby restricted: the congress shall assume no debt that shall cause the total obligations of the United States to exceed one hundred ten percent of the amount last reported by the Secretary of the Treasury.

Section VI
Any government agent, officer, judge, justice, employee, representative, or congressman causing gold to be confiscated from a private citizen shall be tried for theft and upon conviction shall:
    a. be removed from office (and fired, if an employee),
    b. forfeit all pension and retirement benefits,
    c. pay all legal costs, and
    d. restore to the bereaved twice the amount in controversy.

Section VII
The federal government shall assume no obligation lacking funding, neither shall it lay such obligation on any of the several States, any subdivision thereof, or any place under the jurisdiction of the United States. All unfunded liabilities heretofore assumed by the United States are void.

Section VIII
The federal government shall make all payments to its employees or the several states in physical gold. Misappropriation, malfeasance and/or misfeasance of funds shall be considered confiscation.

Senate Reform Amendment
Section I
The seventeenth amendment is hereby repealed.

Section II
The several states may provide by law the means by which their senators may be removed or replaced.

Commerce Clause Amendment
Section I
The federal government shall directly subsidize no product or industry whatsoever, saving the promotion the progress of Science and useful Arts.

Section II
The federal government shall never prescribe nor proscribe what the Several States teach. Neither the federal government nor the several states shall ever deny the right of parents to teach and instruct their children as they see fit.

Section III
The congress may impose tariffs, excise taxes, and customs duties on anything imported or exported, provided that they are applied uniformly and in no manner restrict, subvert, or circumvent the second amendment.

Section IV
No law may impose prohibitions of any sort on the commerce between the several states due to the item itself.

7 posted on 08/16/2013 8:00:42 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: nathanbedford

If we had modern day Thomas Jeffersons or James Madisons to send to the convention then I might support it. But we don’t. Any Constitutional Convention will be populated by the Boehners and Pelosis and McConnells and Reids of the world. And the damage they could do to us at such a convention is mind-boggling.


8 posted on 08/16/2013 8:02:13 AM PDT by 0.E.O
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To: nathanbedford
It is not clear whether Congress can affix conditions to the operation of the convention such as unrealistic time limits, arbitrary subject matter limitations, or requirements with respect to the nature of the delegation from each state.

No. Congress has no authority other than their previously enumerated areas found under the Powers of Congress, nor does Article V itself give them any authority over the process.

In fact, none of the branches have any say-so in the matter.

However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
James Madison, Report on the Virginia Resolutions

9 posted on 08/16/2013 8:05:24 AM PDT by MamaTexan (I am a Person as defined by the Law of Nature, not a 'person' as defined by the laws of Man)
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To: nathanbedford
I have 3 reference works for you.

The first is from the American Legislative Exchange Council. It can be downloaded from their website in PDF format.

Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers

The second is a 1973 report from the ABA attempting to identify gray areas in the amendatory process to include an Amendments Convention.

Report of the ABA Special Constitutional Convention Study Committee

The third is from Alexander Hamilton. Skip to Verses 62 through 66.

Federalist #85

10 posted on 08/16/2013 8:07:55 AM PDT by Publius (And so, night falls on civilization.)
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To: nathanbedford

Very cogent and dispassionate analysis of the logistics.

I do not see that Congress has any option in summoning the state plebiscites should the legislatures so petition. That Congress might shun that duty or fail in its execution does not invalidate the material outcome of the process.

As to Congress’ ostensible “option” of submitting the proposed amendments to the states for ratification, a failure to do so in the face of such an accomplished plebiscite would, I believe, precipitate a constitutional crisis of a degree not seen since the Seccessionist Movement that sparked the Civil War. In the end, it would not be possible for Congress to so brazenly defy the will of the people and still demand respect for the laws it enacts.

So either Congress would have to yield to the will of the people or the people would withdraw the authority of Congress to make law.

I see this as a clear case of social contract. Either Congress acts in the capacity to which it has agreed, or the contract is dissolved and it becomes disempowered. Then its only defense is force. And there are only 535 Congressmen ...


11 posted on 08/16/2013 8:16:07 AM PDT by IronJack (=)
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To: Publius
I have had time to skim read the ABA paper to which you kindly referred me and other readers and I highly recommend it not for its conclusions but for its comprehensive treatment of many aspects of the problem.

What is interesting about the Article V convention is that it really brings the matter of legitimate government directly in front of us and compels us to consider whether we can fall back on the institutions that the ABA, for example, assumes that we must rely on. But are we not, after all, starting afresh?

Thanks for the reference, I will read it closely when I have time.


12 posted on 08/16/2013 8:25:13 AM PDT by nathanbedford ("Attack, repeat, attack!" Bull Halsey)
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To: nathanbedford

I’ve been hearing Mark talk about this on his show, but I’ve not heard anything about a specific amendment to the constitution that he is proposing. Anyone know if his discussions are just educational, or if he has something specific in mind?


13 posted on 08/16/2013 8:56:54 AM PDT by MEGoody (You shall know the truth, and the truth shall make you free.)
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To: nathanbedford
The Constitution is silent about the consequences of Congress failing its affirmative duty...

I have been collecting notes for years with the vague intention of writing a book somewhat along the lines of Levin's effort. One of the conclusions that I have come to is that the Constitution is faulty in many places due to the absence of 'or else' clauses. While the authors were brilliant in their conception I'd have to give them a poor grade as programmers. Their "IF...THEN...ELSE" structures are often defective. It is these defects that cause what we might call leakage of authority. By that I mean situations where one branch, exceeding its authority by some act[the "IF"], was intended by the Constitution's authors to be checked by another branch [the "THEN"]. When that other branch fails its duty to check we are generally left with no recourse. Thus, the leakage of authority from the people as sovereigns to the runaway branch due to the fecklessness of the non-checking branch. There is no "ELSE" that allows us to yank the choke-chain and say "no you don't". The Senate might have originally served as part of this "ELSE" apparatus but 17A broke that. And, elections only partly serve this "ELSE" function because it is nearly impossible to ever get anything repealed even if the feckless "authrity-leakers" are replaced. So once the leakage of authority occurs there is currently no way to get it back.

14 posted on 08/16/2013 9:37:26 AM PDT by Paine in the Neck (Is John's moustache long enough YET?)
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To: Paine in the Neck

I believe IronJack in post 11 hit your “ELSE” “no you don’t choke” when he said, and it is worth repeating; “In the end, it would not be possible for Congress to so brazenly defy the will of the people and still demand respect for the laws it enacts.”

and follows with;

“So either Congress would have to yield to the will of the people or the people would withdraw the authority of Congress to make law.”

If the congress chose to ignore 2/3’s of the State Legislatures the end result would be in total agreement with IronJack. They would have lost their legitimacy and along with that their authority.


15 posted on 08/16/2013 9:58:01 AM PDT by bbernard
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To: bbernard
I believe IronJack in post 11 hit your “ELSE” “no you don’t choke” when he said, and it is worth repeating; “In the end, it would not be possible for Congress to so brazenly defy the will of the people and still demand respect for the laws it enacts.”

and follows with;

“So either Congress would have to yield to the will of the people or the people would withdraw the authority of Congress to make law.”

If the congress chose to ignore 2/3’s of the State Legislatures the end result would be in total agreement with IronJack. They would have lost their legitimacy and along with that their authority.

I did see that and agree with Jack that the political pressure on Congress would be irresistable. I was speaking of Constitutional structure in general, though. I had in mind some sort of apparatus that could work more routinely and on a shorter time frame than a Convention and could act to restrain any of the three branches. Levin's suggested amendments get at some of this. Jack, I think was addressing the problem specifically of how do you get these amendments in place in the face of one branch's [Congress] failure, inability, refusal to act on its prescribed duty.

16 posted on 08/16/2013 10:14:15 AM PDT by Paine in the Neck (Is John's moustache long enough YET?)
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To: corkoman

I can not see WHY not? Is not the Fed. subservient to the State(s), let alone The People? Was that not the whole purpose the Constitution?

Irks me enough to hear that the S.C. gets the ‘final say’ in anything. Uh, NO, We the People are the final arbiters. We the only entities with Rights. /screed off


17 posted on 08/16/2013 10:31:18 AM PDT by i_robot73 (Gov't always start as MAY and SHOULD, but soon becomes one of WILL and SHALL. Never let them START.)
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To: OneWingedShark

Like your idea(s) except for:

Tax S1: ‘wages’ best be spelled out. They’d call ‘em any other name just to get around the rule.
S2: nullification has always been the purview of We the People, why spell it out again?
S5: Why 10%? Why not 3? States must already balance their books, the Fed. is operating extra-Const. as it is
S7: Ex post facto is already unlawful, no?
S10: No benefits should be given to the same in the FIRST place (to be rescinded)

F.R.Act
S1-2: Coinage act already lays this out?
S6: Only 2x? Make it HURT financially, they should also be jailed.
S7: Unnecessary if they followed A1S8, but I guess why this is needed :P

C.C.A
S1: We have green subsidies already that fall into this category. There should be NO give-aways of taxpayer funds for ANY reason
S3: ‘, or circumvent any Right(s)’

Think you left one out though:
- NO ONE’s taxes shall be less than 1%. There is no services that are FREE for any Citizen.
- All votes/delegates tallied by districts, NOT by tally of votes (no longer let the cities over-rule the rest of the State/Country)
- Voting shall be done on the same day for all States, and directly after (if any) tax payments are made (no more can 5 States delegate the runners and people will know how much their vote is costing)
- Equality of Law (if the rules pertain to XYZ, it shall pertain to gov’t as well).

Damn, I’d fill up the NSA servers with the rest :P


18 posted on 08/16/2013 10:53:38 AM PDT by i_robot73 (Gov't always start as MAY and SHOULD, but soon becomes one of WILL and SHALL. Never let them START.)
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To: nathanbedford
I ran across the ALEC document in my work with the local Tea Party last year. I have some issues with the author's conclusions because he had never read the ABA report.

I had the ABA report left over on disk because of the work I did from 1998 to 2000 editing Walker's brief in Walker v. US.

What I gained from the ABA report was threefold.

First, it identified all the gray areas, A decade before the Equal Rights Amendment opened the issues of whether Congress could change the ratification window of an amendment, and whether a state could rescind an earlier ratification, the ABA report identified these as potential areas of conflict that should be addressed by Congress.

Second, it went into detail as to just what rights Congress may have to regulate the conduct of an Amendments Convention based on the precedents contained in the Dillon and Coleman decisions. If Congress has its back to the wall and is forced to call an Amendments Convention, there will be an attempt on the part of Congress to put as much control as possible on the conduct of a convention, and the ABA report telegraphs the ruling class's strategy in advance.

Third, it covers the possible impact of the Reynolds decision, aka "One Man/One Vote", and has a model for that just in case the Supreme Court feels that this decision applies to an Amendments Convention. It also addresses the issue of election of convention delegates versus appointment by state legislature, which is critical.

Walker and I disagreed on Point #3. He accepted the ABA report on this issue and I didn't. I believe that an Amendments Convention is such a primal act of the Republic that state legislatures should appoint and instruct the delegates, and that the convention should be conducted on a "One State/One Vote" basis.

If you combine the two documents, you get a comprehensive view of the issues at hand and the gray areas.

19 posted on 08/16/2013 11:38:17 AM PDT by Publius (And so, night falls on civilization.)
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To: i_robot73
Like your idea(s)

Thank you.

except for: Tax S1: ‘wages’ best be spelled out. They’d call ‘em any other name just to get around the rule.
S2: nullification has always been the purview of We the People, why spell it out again?
S5: Why 10%? Why not 3? States must already balance their books, the Fed. is operating extra-Const. as it is
S7: Ex post facto is already unlawful, no?
S10: No benefits should be given to the same in the FIRST place (to be rescinded)

S1, 'Wages' by the dictionary-term is imminently understandable to anyone: what is received for work done, so I understand what you're saying but I disagree that it's needed because the Constitution is written by the common-people for the government. Therefore their own common understanding and language should be sufficient, instead of the specialized jargon of the legal profession where 'let' means 'prevent'.

S2, I put nullification in there so as to make it impossible for the Judiciary to hide the concept from jurors as they are currently wont to do. Moreover, giving it specificity like this means that government cannot pile on fees/fines/taxes and strip you of your livelihood without appealing to your peers, this should reduce the arbitrariness thereof.

S5: 10% because it's a nice easy-to-remember/calculate number.

S7, the courts have ruled that there cannot be civil ex post facto law, as the increase of severity of punishment is the necessary ingredient. This has been exploited as Congress has retroactively changed tax law before, and yet tax-law violations are considered a criminal affair — so this solves the incongruity therein by speciffically forbidding any tax/fine from being ex post facto.

S10, No, I think that there should be reward given for work done (that is wages). As it is now, there's a lot of people who are going to be getting a good retirement package (or think they are) such as judges: this will make the violation of this amendment really hurt those enacting the violation.

F.R.Act
S1-2: Coinage act already lays this out?
S6: Only 2x? Make it HURT financially, they should also be jailed.
S7: Unnecessary if they followed A1S8, but I guess why this is needed :P

The Congress has power to [fairly] easily alter the coinage act, but even so the Federal Reserve is the big culprit in spending; this would leave things fixed and out of [normal] reach for the congress. S6: I did not want it to be unjust, 2x [plus legal expense] sounds good to me; we don't want to impose punishments that can never be fulfilled. S7, tightens things up a bit: it forbids the FedGov from imposing unfunded liabilities upon the States.

C.C.A
S1: We have green subsidies already that fall into this category. There should be NO give-aways of taxpayer funds for ANY reason
S3: ‘, or circumvent any Right(s)’

Even if Green-crap does fit into the promotion of science/useful-arts, to prohibit it altogether would mean no congressional funding for things like, say, DARPA (which gave us the internet). S3, good addition… except I think that it might be used on things that aren't really rights (abortion).

Think you left one out though:
- NO ONE’s taxes shall be less than 1%. There is no services that are FREE for any Citizen.

Nope, that's in Section 6 of the Tax Reform Amendment.

- All votes/delegates tallied by districts, NOT by tally of votes (no longer let the cities over-rule the rest of the State/Country)

Hm, interesting idea... but I don't think it really fits into the amendments I've shown.

- Voting shall be done on the same day for all States, and directly after (if any) tax payments are made (no more can 5 States delegate the runners and people will know how much their vote is costing)

You mean for primaries?

- Equality of Law (if the rules pertain to XYZ, it shall pertain to gov’t as well).

Yeah, that would be a good one.

20 posted on 08/16/2013 3:39:05 PM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: Publius
Publius:

Looking at your first-rate analysis of the Federalist Papers, I noted your reference to your comments at the foot of #43 and I believe that is relevant and I presume to quote your work at length titled, A Convention for Proposing Amendments below.

You really have done first-rate work.

I wish I had been exposed to it before I wrote my vanity but I'm also pleased that we seem to be on the same page when it comes to anticipating many of the problems implementing an Article V convention. I had to intuit my effort without the benefit of your work.

I was unable to open ALEC.

Here are your comments at Federalist Paper #43 for the benefit of any late coming readers to this thread:

At 85, Madison explains that there are two ways for amendments to the Constitution to be proposed to the states for ratification. The first is for two-thirds of each House of Congress to propose them. The second is for the legislatures of two-thirds of the states to request Congress to call a Convention for Proposing Amendments. Often referred to as a “Constitutional Convention”, it is viewed as the “nuclear option”.

Over the centuries, Congress has considered requests for a Convention to be fixed to a “single subject” standard, and this has foundation in contract law. According to this standard, the Convention is the agent of the states, and an agent may not go outside the purview of his agency agreement. The purview of a Convention is determined by the petitioning language generated by the states, and any attempt to address extraneous issues is forbidden. This is the traditional position.

An alternative position asserts that the Convention is a sovereign body during its life, and it may address any issue it wishes, whether authorized by the states or not. This is a decidedly minority position.

The safety valve is the requirement that the legislatures, or ratifying conventions, of three-fourths of the states ratify amendment proposals produced by a Convention in order for them to be placed in the Constitution. This is what would rein in a “runaway” Convention.

In 1965, the American Bar Association appointed a commission to determine if the Supreme Court’s “One Man/One Vote“ ruling would affect a Convention for Proposing Amendments. One commissioner thought that the Convention was such a primal act of the Republic that it would not, but he was overruled by the other 19 commissioners. The commission also came up with a draft bill to codify the “single subject” rule, to set a standard for the “freshness” of state petitions, to define the procedure for election of state delegates to the Convention, and to define the Convention’s initial rules of procedure.

In 1968 Sen. Everett Dirksen of Illinois introduced legislation matching the ABA’s draft bill, but it did not pass. Upon his death, Sen. Sam Ervin of North Carolina picked up the torch, and upon his retirement Sen. Orrin Hatch of Utah sponsored the bill. Its last introduction in 1991 failed to pass the Senate Judiciary Committee.

Only once did petitions for a Convention for Proposing Amendments reach the two-thirds threshold, and Congress found wiggle room to weasel out of calling a Convention.

In the early 20th Century, one of highest priorities of the Progressive Movement was to end the practice of state legislatures electing senators and pass that to the people via direct election. This had been suggested at the Constitutional Convention of 1787 by James Wilson, and Andrew Jackson had pushed for it in 1829. With many state legislatures functioning as wholly-owned subsidiaries of railroads, mines and other corporate interests, senators were often better known for the company they represented than the state.

The House had often passed an amendment to change this, but the Senate always balked. Then the state legislatures began demanding a Convention to introduce a constitutional amendment to effect this change. When the two-thirds threshold was reached, the Senate reacted by passing the 17th Amendment to the states for ratification.

The Senate had feared that a Convention would come up with an amendment that required the election of the entire Senate all at once under the new paradigm. When the vote by the state legislatures pushed the Senate into action, it came up with wording that permitted the change to go into effect starting with the election of 1914, requiring no new election for the entire Senate.

How did Congress avoid calling a Convention, even when the two-thirds threshold had been reached? Some petitions for a Convention stated that their conditions would be met if Congress passed such an amendment on its own. Once Congress acted, the petition was considered discharged, and it no longer counted for the calling of a Convention. Had those state petitions been worded otherwise, Congress would have been caught in a ticklish situation.

In two Supreme Court decisions, Dillon v. Gloss (1921) and Coleman v. Miller (1939), the Court ruled that if the states met the two-thirds threshold, Congress had no choice but to set a time and place for the Convention; it was a purely ministerial function for Congress. However, as those cases did not pertain directly to this issue, it has been alleged that the statements of the Court were dicta and not law. In other words, Congress could refuse to call a Convention, no court could order it to do so, and only the people, through the political process, could force Congress to do its duty by altering the makeup of Congress.

Even today, there is a lot of uncharted territory.


21 posted on 08/17/2013 1:09:45 AM PDT by nathanbedford ("Attack, repeat, attack!" Bull Halsey)
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To: nathanbedford
You're right. The ALEC PDF download has problems. Try this link instead.

ALEC Document

22 posted on 08/17/2013 9:07:38 AM PDT by Publius (And so, night falls on civilization.)
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To: Publius
As I make my way through the documents to which you have so kindly provided the citations, I am struck by the authoritative temper taken by the authors in which they confidently state a rule for which there is no explicit source. For example, the handbook repeatedly says that the convention may not be a "plenipotentiary" convention and, even conceding that they cite no less an authority than Madison, why should that be so?

As a matter of curiosity, or rather as a matter of fundamental philosophy, I wonder about the strange clause in Article V which prohibits the convention from changing the rule that each state has "equal suffrage in the Senate." I can philosophically understand why the convention might not alter the constitutionally determined mechanics of ratification, but how can the Constitution set aside part of itself to be eternally immutable?

If Mark Levin gets traction on his approach, we shall see some really agile legal minds waging battle over the application of Article V and I certainly look forward to it. More important, I think FreeRepublic should be prepared to contribute.

If you don't mind, I will have some additional thoughts later for your reaction.


23 posted on 08/17/2013 12:40:19 PM PDT by nathanbedford ("Attack, repeat, attack!" Bull Halsey)
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To: nathanbedford
To alter the principle of equal suffrage in the Senate, it would first be necessary to amend Article V to allow it. Only then could the principle be altered.

It would be a two-step process.

Article V names two explicitly forbidden subjects and one implicitly forbidden subject.

Altering slavery before 1808 is one explicitly forbidden subject. Ending equal suffrage in the Senate is the other.

Implicitly forbidden is a convention to write a new Constitution. Article V's language permits Congress or a convention to propose amendments to the Constitution of 1787. Period. Because of that, Article V implicitly forbids Congress or a convention from starting afresh with a new Constitution. This is what that "plenipotentiary" business is all about in the ALEC document.

The states, however, may request a general convention, as opposed to a single-subject convention. This would permit delegates from the states to address all possible subjects for amendments, not just one subject. To address Mr. Levin's proposed amendments, it would be necessary for the states to petition Congress for a general convention.

24 posted on 08/17/2013 12:54:06 PM PDT by Publius (And so, night falls on civilization.)
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To: Publius
It is precisely this doubletalk that I am complaining about. On the one hand a plenipotentiary convention is prohibited but on the other hand a general convention with identical scope is permitted with a different label.

I understand that Article V purports to prohibit changes to the Senate but, as you point out, amendment one might permit changes In Article V and in the next breath a Second Amendment might change the Senate. Once again, I hear doubletalk.

My larger point is that when it comes time to do battle over the meaning of Article V, it seems to me that it is important in winning the battle to determine who sets the rules rather than arguing over the rules themselves. Will it be Congress, the court, state legislatures? At the convention, will it be the delegates representing the states or delegates representing populations?

Much of this will be a public-relations battle and that is historically problematic for conservatives. But in such a battle a head start is often determinative. That is precisely what the Bar Association has attempted to do.


25 posted on 08/17/2013 1:12:54 PM PDT by nathanbedford ("Attack, repeat, attack!" Bull Halsey)
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To: nathanbedford
Not identical scope.

Look at it this way. Article V implicitly forbids throwing out the Constitution of 1787 and starting over. But it allows the states to request a general convention open to all subjects for amendment proposals. Because Congress and an Amendments Convention have the same proposal powers, Congress can't start over either, but it can propose whatever amendments it desires.

To sum it up, throwing out and starting over is a no-no. But proposing 60 amendments that would change the shape of the document is allowed. It sounds like the same thing, and it may even have the same effect in the end, but it is really two different processes.

As far as determining who controls what, this is where the gray areas predominate. I have an idea. Take the points made in the ALEC document and chart them versus the points made in the ABA report.

Here is an example. ALEC says that if a state requests a convention, that request sits out there in perpetuity unless a state's legislature explicitly rescinds that petition. Their logic is that convention petitions and amendment ratifications are governed by the same rules. ABA says that convention petitions require contemporaneousness, and Congress has the right to set the standards for that timeliness. Their logic is that convention petitions and amendment ratifications are apples and oranges.

Make a list of all these discrepancies, and you'll locate all the issues that will be battled in Congress and the courts if 34 states request a general convention to discuss Levin's amendment proposals.

26 posted on 08/17/2013 1:26:23 PM PDT by Publius (And so, night falls on civilization.)
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