Posted on 09/21/2015 1:41:00 PM PDT by Hostage
-PJ
-PJ
You misunderstand me. (1) I am not "empowering" Congress; the Constitution does, specifically Article V. (2) Single-subject applications can result in multiple proposed amendments.
— bb
You misunderstand me. (1) I am not "empowering" Congress; the Constitution does, specifically Article V. (2) Single-subject applications can result in multiple proposed amendments.
— bb
Ooooopppps! Sorry for the double post.
The text of Article V is merely the tip of the iceberg. If you want to know what Article V requires, then you have to look below the surface language. In other words, discern the context in which Article V arises, its function in our constitutional scheme, and what is the foundation of its authority.
By way of deep background, it may helpful to understand the fundamental form or most basic structure of the U.S. Constitution. Although the deliberations of the Philadelphia Convention of 1789 were conducted in utmost secrecy, we know from reliable sources (and subsequent publication) that the debate was often quite heated. Often disputes devolved on the issue of whether the proposed constitution would establish a “national” government, or a “federal” government.
As Madison defined these terms in Federalist 39:
...the federal form ... regards the Union as a Confederacy of sovereign states; instead of ... a national government, which regards the Union as a consolidation of the States.On first appearance, that might sound like hair-splitting. But it was vitally important to the success of the proposed constitution that both views be accommodated, and compromise achieved between them. The genius of the Framers was to produce a constitution wherein it wasn’t merely a true–false case of an “either/or” situation WRT a choice of “national model” or a “federal model”; it was a matter of both being valid. Which of the two characters would be ascendent at any particular time is invoked by its relevance to the particular case under scrutiny, and the warrants granted to the national government under the Constitution. Thus the Framers gave us a “mixed constitution” — one that is both national and federal in character, constantly seeking the balance between the two.
But on my reading so far, I think the Constitution gives a bit more weight on the balance scale to the federalist view. Which is right and proper, since the States are effectively the creatures of the people residing within them. And the ultimate sovereign authority of the U.S. Constitution resides with We the People, as a national body.
On the other hand notice that, other than the direct election of U.S. Representatives to the Legislature in Congress, the Constitution takes great pains to interpose mediating bodies between direct expressions of popular will and electoral success of candidates for office. The idea here is to prevent electoral minorities from being abused by electoral majorities. A great example of this is the Electoral College. Although the President is elected to office by the vote of the whole people in its national capacity, the people do not elect the president directly. The Electoral College — a creature of the several States — does.
Madison directly addresses the constitutional amending process later in Federalist 39. Possibly it would be unintelligible to the modern reader, absent the above backgrounder:
If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society to alter or abolish its established government. Were it wholly federal, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention [ultimately resulting in Article V] is not founded on either of these principles. In requiring more than a majority, and particularly the proportion by States, not by citizens, it departs from the national and advances toward the federal character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the federal and partakes of the national character.Given this background, I can understand why the piling up of more than 400 State applications for Congress to CALL an Article V COS for the Purpose of Proposing Amendments has not yet resulted in a Congressional CALL for same. You don’t need all the States to propose amendments. You only need 34 of them. But if you are speaking of amending the Constitution, then it stands to reason that those 34 States would have a common interest in the matters such a convention would be tasked, and authorized, to address. Thus the importance of a clear call from the States as to the subject matter of such Article V COS.
The proposed Constitution, therefore, even when tested by the rules laid down by its antagonists, is, in strictness, neither a national nor a federal constitution, but a composition of both. In its foundation, it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.
We ultimately must rely on precedent to guide us here. The best precedent, and the best evidence, was cited by Madison, in Federalist No. 40: It is the Philadelphia Convention of 1789 itself.
This Convention had very clear subject matter.
“Whereas there is a provision in the articles of Confederation and Perpetual Union for making alterations therein, by the assent of a Congress of the United States and of the legislatures of the several States; and whereas experience hath evinced that there are defects in the present Confederation; as a means to remedy which, several of the States, and particularly the State of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution: and such convention appearing to be the most probably mean of establishing a firm national government:If you could get 34 States to simply recapitulate this formula today, or some other more or less similar text that could reflect their common concern, it is my firm belief that Congress could NOT evade its constitutional duty, under Article V, to issue a CALL for a COS.
“Resolved — That…a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia for the sole and exclusive 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.”
Just one thought to leave with you, before I sign off for now: Never forget that Article V itself was the product of a constitutional convention.
Decision in Philadelphia: The Constitutional Convention of 1787, by Christopher Collier and James Lincoln Collier.
The Summer of 1787: The Men Who Invented the Constitution, by David O. Stewart
If the states of their own volition met in convention tomorrow, and submitted amendments to their state legislatures the next day, who in turn held elections for delegates to state conventions, and over three-fourths of the conventions ratified a set of amendments, should the nation accept them as part of the Constitution?
Probably not.
For the question next becomes: What constitutional or legal basis do States think they have, who meet "of their own volition," and possibly may think that they might, by submitting their complaints to their respective State legislatures, get around federal, constitutionally grounded proscriptions against such a "populist" reconstruction of the ground of Authority of the American rule of law:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.Maybe you don't see the problem the same way I do. S'okay.
But what are you proposing? That the States should do an end run around history and precedent? How many States can you get on-board, who agree with one another as to the purpose of the convention?
Anyhoot, to finally answer your question, above: I do not believe, on the state of the evidence I've seen so far, that the output of such a purely state-invoked convention could compel a Congressional CALL. For simple lack of standing, it having been produced by the States alone, not in collaboration with Congress — as Article V seems to require.
JMHO FWTW. (I am not a lawyer....)
It is time to de-lawyer yourself.
Our constitutional house is burning down. Congress, Scotus, Obama are not only incapable of assisting in its salvation but purposely work to its demise. Can the victim really expect sympathy or assistance from his mugger? Since Congress has proved itself unwilling to call a convention in the past, it is wise to assume it will not do so in the future.
Return to first principles.
The Constitution does not prevent the states from convening. The 9th and 10th Amendments recognize just the opposite.
The people and the states are the component members of the American republic. Congress, President, Scotus are not; they are mere artifacts; they are the products of and servants of the people. When the servants cease to do their duty, it is not only the right, but the duty of the component members of the American republic to do their duty, which is to reframe the government of their creation such that it serves the general happiness and prosperity of the nation.
If the Constitution was the actual Supreme Law of the Land, there wouldn’t be any need today for the sovereign people via their states to appeal to higher law, that of the Laws of Nature and Nature’s God. No inferior power like Washington DC can alter, limit or diminish federal or popular state conventions that take their authority from the Law of Nature to define their government.
Its right there in our Declaration of Independence.
That is precisely what I am attempting to do. It seems you are the "innovator" here, not me. FWIW.
You are leaving out the practical point of what is needed to invoke a constitutionally valid Congressional CALL — which, under Article V, is mandatory upon the due Applications of 34 States.
So, we have a 34-state criterion that has to be met, before Congress is mandated to act. What is that criterion?
It seems there are two ways to look at this problem.
The first is to say that, once 34 states have applied for an Article V COS on any subject matter whatsoever, that Congress must call the COS.
By that criterion, Congress would have been constitutionally compelled to call a COS back in the 1970s, there having been 34 State applications by that time.
The question then becomes, does Congress have a duty to respect a simple numerical tally of States making Applications — a simple arithmetic, mathematically linear tally of States — "1 + 1 + 1 ... + 1, + 1, + 1," until you get to = 34?
Or is it reasonable for Congress to "aggregate" State Applications by a reasonably-close-subject-matter criterion, which goes beyond simple arithmetic? Just as human life, and the American polity, are not reducible to simple arithmetic?
Anyhoot, the above seems to be the root of the main dispute here at FR about the Article V COS, which I desperately desire to see CALLED. Having said that, I hold to the latter view of the matter, for the reasons given here, and in other recent posts.
I agree with your observation and conclusion at (2): State conventions are not directly accountable to State legislatures.
And certainly, I DO agree with you that "No delegate (commissioner) may be a state employee nor hold any elected or appointed office."
Thank you so much for writing, NTHockey!
Incorrect. It would have been around 1895.
Why is it, Publius, that I am always so GLAD to be corrected by YOU???
1895 it is, for the record!
THANK YOU!
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