Posted on 04/11/2014 3:35:48 PM PDT by Jacquerie
Article V ping!
The current administration thinks it can create an Amendment by Executive Order.
And this SCOTUS is 50/50 on allowing it!
I’m all in.
Deal the cards.
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www.conventionofstates.com
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Legislative Update:
Alaska:
The Rules Committee has a slight back-up in bills, but they understand the importance of passing the bill to the Senate Floor as soon as possible.
Arizona:
SCR 1016 passed the Rules Committee with bi-partisan support. The next step is the House Floor and then the Senate Floor. The Arizona legislators are hoping to get out of session early this year, so they are motivated to push things through quickly.
Colorado:
The hearing went well this week, one of the committee members was unable to attend so the vote has been delayed.
Florida:
The House Floor did not hear the resolution today,
but it is tentatively on the schedule for the 21st.
Missouri:
Waiting on the vote count from the General Laws Committee before moving on to the next committee.
South Carolina:
The second Judiciary Subcommittee hearing was rescheduled to later this month.
The critical statement:
“In a few instances, States have sent official documents to NARA to record the rejection of an amendment or the rescission of a prior ratification. The Archivist does not make any substantive determinations as to the validity of State ratification actions, but it has been established that the Archivist’s certification of the facial legal sufficiency of ratification documents is final and conclusive.”
I read this as rescission of prior ratification have no legal basis. Once a state ratifies, and that ratification is certified, it is permanent.
This being the case, if Illinois current resolution passes, it most likely means that an Article V convention will be called.
Importantly, wherever the convention is held will have to have the tightest security the US has ever seen for such an event. Every spy on the planet, every terrorist, every corporation, and a whole bunch of others will do anything to penetrate it.
There was a good reason for this.
When the Constitution was ratified, several states said that their ratifications were contingent upon a bill of rights being inserted into the new Constitution as amendments. Madison pointed out that ratification was an up-or-down act not dependent upon any conditions, but it was clear that a bill of rights was going to be necessary. Elected as first Speaker of the House, Madison was a bit slow in generating amendments, but when two states sent petitions to Congress for a “general” Amendments Convention, Madison put quill pen to hemp paper and generated 12 proposed amendments, which were slam-dunked through Congress. Ten of those 12 were slam-dunked through the ratification process and became our Bill of Rights.
Two of those amendment proposals sat out there without sufficient ratifications by the states to get into the Constitution.
In 1983, Gregory Watson, a legislative assistant to a Texas state senator, did some research into what amendments might be out there waiting for ratification, when he happened on Madison’s 12th proposal, known as the Salary Grab Amendment. Resigning from his job, he went around the country holding seminars for state legislators about this particular amendment. As a result, ratifications began trickling into the Archivist’s office.
In 1992, the 38th ratification hit the Archivist’s office, and the Archivist sent a memo to Congress that their power had just been radically curtailed. Unfortunately, the Archivist had failed to give Congress a heads-up as ratifications began to reach the critical number, and as a result Congress was blind-sided by the 38th ratification.
Congressional leadership was outraged and sent the Archivist a memo challenging the earliest ratifications as “stale” and stating that those states needed to ratify the amendment all over. The reasoning was that since 1918 Congress had placed seven year windows on ratifications, and 203 year old ratifications could not be valid.
The Archivist cited every Supreme Court decision on the amendatory process in a masterly memo, and Congress found itself in the position of having to sue in federal court to throw the 27th Amendment out of the Constitution. The year 1992 was an election year with a strong anti-incumbent tide flowing, and Congress decided that discretion was the better part of valor. There would be no lawsuit. Rather than fight in court, Congress accepted the 27th Amendment into the Constitution with a lot of grumbling and no enthusiasm.
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The amendatory process under Article V consists of three steps: Proposal, Disposal, and Ratification.
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:
Implicitly 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
With respect to this particular set of petitions for an Amendments Convention, this post covers a lot of legal ground.
Fascinating. Your post illustrates the power v. power aspect of our government. Yes, there is supreme constitutional law, but if there is no organized interest, hopefully with judicial standing, to defend and demand implementation of each and every clause, . . . we know what happens.
<>Once a state ratifies, and that ratification is certified, it is permanent.<>
It appears that way.
There is a chance IL could pass the balanced budget amendment?
The contretemps over the 27th Amendment in 1992 shows that senators and congressmen do not want to look like opponents of the Constitution and the amendatory process in an election year.
Click on that link in Post #8. The ALEC document agrees with your position, but the ABA document does not. It’s not settled law yet.
The COS movement is gaining momentum! The next assembly of the states will be June 12th. Depending on the outcome and press release, it could have major impact not only for our constitution, but for the 2014 and 2016 elections as well.
V
After 225 years, one would think all the points you brought up would have been statutorily settled. No such luck.
I’m not all confident congress will allow a convention. I doubt they would refuse to call a convention after 34 applications, because I don’t put it beyond congress to threaten, bribe, extort . . . do what it takes to prevent 34 applications from happening.
Congress won't bribe or threaten, but they will try to use the unwritten Single Subject Standard and Contemporaneousness Standard to sandbag the effort. Those will probably have to be litigated unless there are enough votes in Congress among conservatives to block such interference.
State Legislature Method, or
the State Ratifying Convention Method.
This is the most important part of your post. Far too many people think of an Article V Convention as a declaration of martial law. Such a convention can only propose amendments. It can not put anything into effect. Even if such a convention tried to unilaterally impose an amendment or new constitution, how would they do so? Would the military back the convention's clearly illegal act? Would the federal and State governments acquiesce? Would the People not fight the convention's illegal act? There a much greater and realistic chance that an Article V Convention would be too divided to propose anything than that it would be unified enough to attempt a coup.
“Stroke of the pen. Law of the Land. Kinda cool.”
Paul Begala
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