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 Conservative’s 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, that’s not nice—or true—at all. Some sharp observers have taken notice of Levin’s unkind—and untrue—accusations, but they’ve 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, Levin’s 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 ...
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.OR
[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,
OR
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.
Proposal:
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.
Disposal:
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.
Ratification:
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.
Forbidden Subjects:
Article V contains two explicitly forbidden subjects and one implicitly forbidden subject.
Explicitly forbidden:
Implicity forbidden:
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.
Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers
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.
Report of the ABA Special Constitutional Convention Study Committee
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.
Nope. They never made it as far as my short-term memory. If you wish to cite some of her points, let ‘em rip.
Yes thank you, I’ve previously read this.
Read and comprehended.
Your post 53 lacks content.
Let’s say that you come up to me and say, “Pub, ole’ buddy, I need to sell my old car. I don’t have the time, and you’re retired. If you can sell that old clunker of mine, I’ll give you ten percent.” So we conclude a written contract (New England) or just shake hands (the South). In this transaction, you are the Principal, I am the Agent, and the agreement, written or otherwise, is the Agency Agreement. As long as I stay within the bounds of the Agency Agreement, all is well with the world. You as Principal can bind me as Agent to the Agency Agreement, but as Agent, I can’t bind you to anything except that which is written specifically in the Agency Agreement.
But let’s say that instead of selling your car, I sell your house.
Is my sale of your house valid? No. It’s null and void because the Agency Agreement didn’t permit me to sell anything but your car.
Could you sue the pants off me for breach of contract and civil fraud? Yes.
Could you bring me up on charges of criminal fraud? That depends on the wording of the statute in the state in which we concluded the Agency Agreement.
The Principle of Agency applies to an Amendments Convention. The states request Congress for an Amendments Convention to handle a specific subject or subjects. If the petitions reach the two-thirds threshold, Congress is required by Article V to set the time and place for that Amendments Convention, and the language of the petitions is inserted into the convention call to define the purview of the Amendments Convention.
In this arrangement, the states are the Principals, the Amendments Convention is their Agent, and the convention call is the Agency Agreement. It is a matter of settled contract law that an Agent cannot go outside the purview of his Agency Agreement lest his actions become legally invalid. The Amendments Convention is required to adhere to the wording of the Agency Agreement.
Concerning delegate selection, if you go back to that post you’ve already read, you’ll see two links. Print off the documents in those links and put them in a binder. I needed to do that because I refer to those documents all the time. The ALEC document has one approach to delegate selection, and the ABA document takes a different position. Personally, I side with ALEC. The states make the call.
Yes, I do believe there is a uniform rule...
Each state has one vote.
Delaware might choose, say, one delegate... California 10. Wyoming might have an election to choose the delegates, Texas’s legislature might choose theirs.
But, so what. Still, one vote per delegation. [Furthermore, I believe that is what would be worked out when the COS meets, preliminarily, in May.. and then, more formally next December - to prevent a CA from sending, say, 500 delegates, effectively throwing a monkey wrench into the process]
Also, I do not believe it is in Congresses purview to tell states that Congress chooses the delegates. Period.
If that is your contention, then indeed, next step is CW-III, as even a COS would be whistling past Dixie. Until such time, I’m rooting wholeheartedly for a COS... my kids and their kids depend on it.
Those reports express varying opinion for how things “should” be done.
For example, in the view of the ABA “a system allotting to each state a number of delegates equal to its representation in the House of Representatives should be an acceptable”, while the ABA says nothing other than “one state one vote” and does not address apportionment of delegates.
While ALEC proposes four possible methods of delegate selection, the ABA touts a single method (popular election).
Things are not as well defined as some would have us believe.
I am new to to Article 5 / Nullification debate. I found the OP interesting. I like the idea of a vigorous application of the 10th amendment by the states. A good start would be all federal laws related to education.
That could begin today. Amendments will take many years - maybe more years than we have.
According to ALEC a state application can not specify particular wording of an amendment.
What does that imply?
Obviously, that the particulars of the Amendment will be the subject of and product of negotiation.
What would stop a state from imposing on other states by sending too numerous delegates?
I'm glad you've read both documents. The ABA report cites Dillon v. Gloss from 1921 and Coleman v. Miller from 1939, both of which granted Congress wide latitude in regulating the amendatory process, provided such regulation didn't contravene Article V.
In 1967, Sen. Everett Dirksen introduced a bill to set down the ground rules for an Amendments Convention because we were just two states shy of requiring a convention to discuss repeal of the Supreme Court's "One Man/One Vote" decision. Dirksen wanted the law in order to protect the convention from those who wanted Congress to block a convention entirely.
After Dirksen's death, Sam Ervin picked up Dirksen's banner, and after his retirement, Orrin Hatch picked it up. Hatch's version, based on the ABA report, failed to get out of the Senate Judiciary Committee in 1991, and he hasn't introduced it since.
The preparatory meetings being held in advance of a convention are intended to pre-empt Congress from making a play to set rules for the convention, to have the states pick delegates in the manner they choose, and to have the states run the convention in the manner they choose. You're right about uncharted territory, but fortunately the people pushing for an Amendments Convention know this and are preparing for it.
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