Skip to comments.Appeal to Heaven or Appeal to Law [contra Mark Levin]
Posted on 01/20/2014 7:16:53 AM PST by don-o
Last week on his call-in radio program, conservative commentator Mark Levin disparaged the spreading push by states rights activists like The Imaginative Conservatives friend Kevin R.C. Gutzman for nullification by state legislatures of overreaching federal legislation. Sadly, Levin chose to slur the notion as a fundamentally neo-Confederate desideratum, one he views as, among other dreadful things, nullifying his recent push for a convention of the states. Now, thats not niceor trueat all. Some sharp observers have taken notice of Levins unkindand untrueaccusations, but theyve missed some of the acute angles. Everyone seems to agree that a nullification-supporter de facto sets himself against all Constitutional procedures. Errantly.
Notwithstanding the presumptions of both Levin and his rivals, there exists zero genuine opposition between nullification on the one hand, and on the other, Levins rightminded push for a convention of the states. Again, I endorse strongly his push for a states convention (as well as the prompt to nullification), upon whose manner of procedure I will be, in a few weeks here on The Imaginative Conservative, presenting an article exposing the ideas of my friend and mentor Mike Rappaport, the single Originalist legal scholar in the country to have endorsed the type of state convention that Levin claims will obviate the dangers of the much feared runaway convention.
(Excerpt) Read more at theimaginativeconservative.org ...
This is a good essay about ideas - not personalities.
Bump for later.
Who has the Levin ping list?
the law now is whatever obama says it is
Be nice to use what we have first before we change it, since changing it might not go as planned.
We live in an age that is diluting its principles, not making them bolder, stronger and more concentrated.
I fear we as we are now will make things worse, rather than improve upon what the FFs gave us.
A guy from Alabama called Levin last week and asked, “What will keep a judge from just ruling against anything that comes from the state convention?” I wish I could remember Levin’s exact answer, but it was something about the whole thing existing to bypass federal overreach. That answer, though not exactly his words, is why I believe the Convention idea is inferior to Nullification. We’re dealing with a runaway, lawless federal government. They will rule against whatever comes out of the convention in violation of the constitution as they’ve done consistently these past decades. They will actively thwart it through the executive, legislative, and judicial branches with the help of State Run Media.
The good news is, after all of that, nullification will still be on the table. But why not just skip right to it while we have momentum, before the crackdown really comes?
Exactly! If everything Levin proposes were implemented AND adhered to, it would be great. Just like if the constitution were followed, it’d be great. Laws, however, only constrain those who fear them. The federal government, consisting of gifted demagogues, has no reason to fear what they can nullify through judicial and executive fiat, and hove the media cover for them.
So, even for the Convention to work, nullification by the states will have to eventually happen.
The author struggles because his primary assumption is wrong. Being ‘Nullification’ works.
Nullification is a pipe dream that’s more likely to do critical damage than a Convention of States. The results of a Convention of States is just and enforceable. While Nullification will just lead to quick law suits weakening the States Legislatures as they spend their ‘good will and valuable considerations’
But who can’t appreciate the authors coining of the phrase “fundamentally ‘neo-Confederate’ desideratum”.
But we don’t want another George Will wanabe.
Very good case against the Article V convention, for nullification made here:
She explains why instead we must learn about our Constitution, and enforce it with nullification of un-Constitutional acts of Congress, and a lawless executive...
An amendment proposed by a COS, ratified by the states, is by definition Constitutional, when it becomes part of it. Judges at that point can't say that an amendment is not Constitutional, only whether cases brought to it adhere to one amendment or another, including the new COS amendments.
A COS will take a few years to propose amendments, and then a few years to ratify. The remedies it will propose, as stated in the "call" is to restore a runaway federal govt - there would be generic types of amendments to reign it in... like term limits.
OTOH, nullification, if I understand it, is more specific and less generic. It would be used to address specific issues that a State encounters against the federales. It would apply only to the states that use it, and the rest of us are still in limbo (like forever here in MA). It would address specific abuses, while the federal govt continues to run away.
I'd like to see both used... nullification can be used much more quickly for pressing problems that can't await a COS. And the COS is needed too to solve these problems from a top-down approach.
The first part I can't agree with. If a term limit, for example, is added to the constitution, it would not be able to be deemed unconstitutional. We see this at the state level with the Federales thwart the people in a state with federal law, but if something is clearly stated in an amendment, it is therefore part of the constitution. Your second part is definitely true. They federal leviathan will do all they can to ignore, thwart, and mutually act to get around new additions. Anything added would have to be written with proper legal implications so it cannot be twisted...and it must be written so it is easily explained and understood by all people.
The only argument I see against the Article V is the liklihood of actually getting amendments though the process and enacted. It's a long road. Otherwise, it makes all the sense in the world to proceed.
This so-called “publiushuldah” character is dead to me.
I won’t dwell too much on facts in this reply (other than below), because in a previous encounter elsewhere with this very “person”, she raked me over the coals with a personal attack, the kind that would warrant the abuse button here on FR, and moderator action.
However, I’ll point to one thing on that link - she talks about congress selecting the COS delegates, and the number from each state. This is not so. You can read the COS-setup legislation from Indiana (one of the furthest thru the COS process) and you can read various law journal articles that document convention precedent. Delegates WILL be selected by state legislatures, and each state’s delegation, whether they send one or 10 delegates, will be limited to one vote. There is an expected next meeting in May and another in December, where I’d expect some of this will hash out - ie, how many delegates. Now, it is in COS power (not the congress) to steer from this, BUT, then the COS simply will not happen - it will collapse, as too many states would pull out.
Thus, both nullification AND COS are needed. Might as well start going the COS route now, as we are talking many many years to relief.
And how would we keep nullification from sliding into anarchy?
Very good! Thanks for posting it.
While one lauds and supports Levins valuable labors to muster up a convention, he must come to terms with the root cause of all the tyranny which presently besets the conservative mind: popular vice which breeds the distraction which itself breeds statism. It is the opposite of salutary neglect, the boon to the makers of the nation; citizens neglect is a boon, on the other hand, to the breakers and takers of the nation. In James Madisons words on June 20, 1788 at the Virginia Ratifying Convention: Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checksno form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.
I'll also add something from Aleksandr Solzhenitsyn :
Over a half century ago, while I was still a child, I recall hearing a number of old people offer the following explanation for the great disasters that had befallen Russia: "Men have forgotten God; that's why all this has happened." Since then I have spent well-nigh 50 years working on the history of our revolution; in the process I have read hundreds of books, collected hundreds of personal testimonies, and have already contributed eight volumes of my own toward the effort of clearing away the rubble left by that upheaval. But if I were asked today to formulate as concisely as possible the main cause of the ruinous revolution that swallowed up some 60 million of our people, I could not put it more accurately than to repeat: "Men have forgotten God; that's why all this has happened.
Me again: From now on, I listen to anyone asking for my vote to hear anything that reflects these truths.
In a certain sense, nullification has been and is ongoing right now, and it currently IS, IMHO, sliding into anarchy.
This particular nullification is not being promulgated by state legislatures, but by the judiciary and the feral agencies and departments regulating the Constitution to shreds.
[ Exactly! If everything Levin proposes were implemented AND adhered to, it would be great. Just like if the constitution were followed, itd be great. Laws, however, only constrain those who fear them. The federal government, consisting of gifted demagogues, has no reason to fear what they can nullify through judicial and executive fiat, and hove the media cover for them.
So, even for the Convention to work, nullification by the states will have to eventually happen. ]
Kinda hard for the political class to get around term limits...
And if they do then it would mean war, a war they would be on the wrong side of.
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.Delegates where chosen by States in a previous Convention called by Congress.
U.S. Const. art. V
On February 21, 1787 Congress proposed a Convention for "the sole and express purpose of revising the Articles of Confederation"
Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several States be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the States render the federal Constitution adequate to the exigencies of Government and the preservation of the Union.The rest is history.
Who controls the States? Democrats and Republicans do. The Uniparty - Democrats and Vichy Republicans - are the problem, not the structure of the government.
Do you trust Democrats or Republican bosses to select delegates? Would fairness be construed to demand equal numbers of Democrats and Republicans? These organizations are the problem, they have a stranglehold on power.
A Convention for a "sole and express purpose" can and has morphed into a new form of government.
Note that it was Congress which decided that states would choose delegates.
I certainly do not trust much in my state of MA selecting delegates, nor from a handful of other rat hellholes.
Clearly, a COS is going to have its contingent of left wing nutjobs.
That said, I do trust some states, where virtue still sits heavier in the balance, to select decent delegates.
So, say this COS gets off the ground, with its good and bad. Say they propose some great amendments - term limits, repeal the 17th, and so on. Say, in addition, they propose some lemons, with the nutjob delegates having a bit of sway - repeal the 2nd. So be it!
Then it goes thru the ratification process... One state, one vote. 3/4 needed for ratification. If that was not sufficient to weed out the “repeal-2A” amendments, then we might as well advance to the next stage anyway (CW-III). But, I think the ratification phase much more likely to weed out the repeal-2A’s, and ratify the 12-year term limit amendments.
The Constitution doesn't contain anything that authorizes them to interfere between me and my doctor. There is no need to change the document. What needs changing are the decisions of the Supreme Court such that our rights are protected.
It is the nonsense tolerated by the Court for the last century which is making slaves of us all, including our grandchildren and our grandchildrens' grandchildren.
Rather than attempt to nullify 50 times that which has become the law of the land, it would be far better for awful bills to be killed in their infancy by a senate of the states.
I’ve read some of her stuff. It is junk.
Article V ping.
Here is Indiana's Statute to govern her delegates. Scroll to the bottom to the enrolled PDF.
Duties of Article V convention delegates:
Describes the duties of delegates and alternate delegates to a convention called under Article V of the Constitution of the United States.
Provides that a vote cast by a delegate or an alternate delegate that is outside the scope of the instructions given by the general assembly is void.
Provides that a delegate or alternate delegate who votes or attempts to vote outside the scope of the instructions given by the general assembly forfeits the delegate's appointment by virtue of that vote or attempt to vote.
Provides that the call by the general assembly for an Article V convention is withdrawn if all delegates and alternate delegates vote or attempt to vote outside the scope of the instructions given by the general assembly.
Provides that a delegate or alternate delegate who knowingly or intentionally votes or attempts to vote outside the scope of the instructions commits a Class D felony.
Establishes an advisory group to evaluate whether a delegate or an alternate delegate has acted outside the scope of instructions.
Annapolis convention September 11-14.
November 23, Virginia authorizes election of delegates.
November 23, New Jersey elects delegates.
December 4, Virginia elects delegates.
December 30, Pennsylvania elects delegates.
January 6, North Carolina elects delegates.
January 17, New Hampshire elects delegates.
February 3, Delaware elects delegates.
February 10, Georgia elects delegates.
February 21, Congress calls for a federal convention.
There was nothing to prevent congress from proposing amendments, which it did, regarding taxes and trade a couple of times in the early 1780s.
Just as the federal convention of 1787 was extra-congressional, our future amendment convention of the states will also be extra-congressional. Unlike nullification, the state amendment convention will be constitutional.
Indiana’s statute does not matter, Congress calls the Convention. There is nothing in the Constitution specifying who are to be delegates to that Convention. In prior Conventions called by Congress, Congress specified who were to be delegates: they - Congress - specified that states would choose delegates. There is nothing that constrains Congress to this, they could specify some other method of choosing delegates.
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Correct. That is for the states to decide.
Tell me of the other Article V conventions in which congress selected delegates.
Exacly who is this woman, anyway? What makes her an "expert?"
Dunno much... something about tending a lecture circuit.
From what I see, though, a gasbag. Perhaps conservative, perhaps agreeing with many FR issues, but arrogant and rude to a fellow conservative. And this COS/nullification issue is VERY important to our times, and, IMHO, the two efforts can co-exist, as they serve complementary purposes.
Late Article V ping!
Yes, late February. But 2 or 3 months elapsed before the convention convened... that was no vacuum. There would have been plenty of activity, letters, discussions. It is my understanding that in May, the legislatures and those in power in the states that commissioned the commissioners knew quite well the evolving purpose - to write a new Constitution. Any surprises would have generated anger, delegate/delegation recall, and no appetite for ratification. The issues against ratification, that raged for months, almost causing some states like MA not to ratify, surrounded things like too much federal power like we see today... and not that it was "run-away".
Do you trust Democrats or Republican bosses to select delegates?
No, of course not. They are Slime (both groups). But, I do trust at least some states to send some decent folks. When a COS meets they will just have to sort it out themselves. There WILL BE, by definition, leftist jerk morons. If in the balance there are not enough Constitutionalists in the balance, well, then it's over...
>> That is for the states to decide.
On what do you base this?
>> Tell me of the other Article V conventions in which congress selected delegates.
The Convention called by Congress on February 21, 1787 (obviously this is not an art. V convention) specified that states were to choose delegates for the “the sole and express purpose of revising the Articles of Confederation”. Those delegates threw out the Articles of Confederation.
There is nothing that constrains Congress to specifying that states are to choose delegates, they could specify some other method of choosing delegates for the Convention that THEY call.
Care to elaborate?
“If we will not be governed by God, we must be governed by tyrants.” - William Penn
The amendment is clear - Congress can propose amendments or States can. The only role for Congress in the latter case is to be the clearing house for the "applications". This entails ensuring, for example, that if there were numerous applications for Art-V for various purposes, that the accounting (2/3 needed) is separate for each purpose. The one being discussed now, "impose fiscal restraints on the federal government, limit the power and jurisdiction of the fe deral government, and limit the terms of office for its officials and for members of Congress.", would have a separate count from some other purpose, such as: "abolish Amendment number 2". Good luck to leftist states getting very far with the latter. But, my point is that Congress needs to know which bucket to put the application in. Once that 2/3 is met, Boom! They must call the Art-V for that particular set of applications.
It would make no sense whatsoever if Congress can on the one hand propose amendments, and on the other, Congress essentially *RUN* a convention on behalf of states to propose amendments.
Look forward to any further elaborations.
FYI there is one glaring one previously noted in reply-17.
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 break this down:
U.S. Const. art. V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this ConstitutionSo Congress calls the Convention, Congress specifies whether Amendments are to be approved via the State Legislatures OR by State Conventions, but they don't specify the method of choosing delegates to the Federal Convention? Congress could require that State Legislatures appoint delegates to the Federal Convention, or that delegates are to be chosen by popular election in each State, or some other method.
[The Congress] on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments
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,
by Conventions in three fourths thereof,
as the one or the other Mode of Ratification may be proposed by the Congress;
The Federal Convention is for the purpose of "proposing Amendments"... the delegates to the Federal Convention propose Amendments. What is to bind them to specific Amendments? What is to vitiate their action outside the scope of their instructions? Yes State Legislatures do not have to ratify those Amendments, but suppose ratification is to be by State Convention? It will be "the club" - the Uniparty. Unelected Unitparty scum.
To be absolutely clear: I do not trust the political class AT ALL. They ARE the problem.
There are two ways to propose an amendment to the Constitution.
Article V gives Congress and an Amendments Convention exactly the same power to propose amendments, no more and no less.
Once Congress, or an Amendments Convention, proposes amendments, Congress must decide whether the states will ratify by the:
The State Ratifying Convention Method has only been used twice: once to ratify the Constitution, and once to ratify the 21st Amendment repealing Prohibition.
Depending upon which ratification method is chosen by Congress, either the state legislatures vote up-or-down on the proposed amendment, or the voters elect a state ratifying convention to vote up-or-down. If three-quarters of the states vote to ratify, the amendment becomes part of the Constitution.
Article V contains two explicitly forbidden subjects and one implicitly forbidden subject.
I have two reference works for those interested.
The first is from the American Legislative Exchange Council, a conservative pro-business group. This document has been sent to every state legislator in the country.
The second is a 1973 report from the American Bar Association attempting to identify gray areas in the amendatory process to include an Amendments Convention. It represents the view of the ruling class of 40 years ago. While I dislike some of their conclusions, they have laid out the precedents that may justify those conclusions. What I respect is the comprehensive job they did in locating all the gray areas. They went so far as to identify a gray area that didn't pop up until the Equal Rights Amendment crashed and burned a decade later. Even if you find yourself in disagreement with their vision, it's worth reading to see the view of the ruling class toward the process.
It’s a Federal Convention.
Are some delegates to be appointed by state legislatures, others by popular election, and yet others by gubernatorial appointment?
Are some states to have more delegates than others? By what formula, whatever each state chooses?
There must be a uniform rule. That rule is set by Congress.