Replies

Publius,

You make the statement that indications from the Court in Coleman vs Miller are nothing but obiter dicta, but then do not clarify why this might be the case, examining the issue before the Court.

Despite sidestepping the specifics of the case, your regale the reader with generalized pronouncements about the law.

You ask what the intent is of Article V, but then proceed to reference the Declaration of Independence, when there is no direct tie between the two indicated by any reference. While Constitution Law does indeed recognize the principle of Contemporaneous Construction, to allow illumination of text by directly related writings from the same period, the Constitution and DOI are not contemporaneous and neither illuminates the other.

In Coleman v Miller, the fact is that under jurisprudence, the statements made by the court regarding the authority of Congress are not possibly obiter dicta, as they have direct bearing on the decision reached by the Court. At issue before before the Court was whether or not an amendment to the Constitution could be reintroduced to the Kansas Legislature, after the legislature had already rejected it, and whether or not Congress could leave the bill without a ratification deadline.

The Decision before the Court rested entirely on the Consideration of that authority the United States Congress had over the amendment process, as indicated by Article V, and by that authority, whether or not Congress might recognize a ratification that had previously been rejected, and whether or not an amendment could remain open for ratification for an indeterminate period.

As a result, the Court’s indications regarding Congress’ authority over amendments via Article V have direct bearing on the cease before it. No, it’s not obiter dicata.

Beyond that, your follow-up arguments about the validity of the Court’s statements have no basis in jurisprudence, or even fundamental logic.

Amendment conventions are not sovereign bodies, as they are not the highest authority in the land, however imagining that they are is an extremely alarming perspective from one claiming that a convention is safe.

If the fact that the “Constitution created Congress” had any bearing on Congress’ authority, then Congress could not decide where to put Post Offices, or how many ships were in the Navy, or even propose amendments itself. Congress would be a lifeless body unable to make any decision under the Constitution. While generally this would not be such a bad thing at all, it is not any sort of valid legal argument.

The claim that Article V only gives Congress a ministerial duty regarding State Conventions, is not born out by what is actually given positive indication in Article V, which continually involves Congress being the singular governing authority indicated therein, nowhere referencing the Convention delegates themselves as having unlimited authority (which would be extremely imprudent).

Furthermore, the ‘whole people’ do not collectively have a sovereignty, but rather only the States themselves do, and only within each State’s own borders. If a mere mass of people could suddenly have sovereignty anywhere, at any time, then various “sovereign” groups would continually collide with one another. There is only one Sovereign authority, and it is not simply be banded and disbanded. Sovereignty actually has a defined meaning, and it is not ‘subject’ to being so randomly recognized.