Posted on 09/21/2015 1:41:00 PM PDT by Hostage
I am not fearful of an Article V COS. Indeed, I deeply, deeply desire one.
What I AM fearful of is Congress finding reasons not to CALL one. And the easiest excuse for them not to do so is to declare that there are not 34 state applications that can be aggregated together to reach the Article V threshold of 34 states on the basis of similar or identical subject matter.
Here's an historical list of Article V petitions from the states, for the calling of a COS by subject matter, in historical order. As to subject matter, these petitions are all over the lot. I haven't been through the entire list; but suspect there are not 34 petitions sufficiently "alike" as to subject matter to be recognized by Congress as "aggregatable" for the purpose of establishing the 34-state threshold — without which Congress will not issue a CALL.
Even though Article V is silent about the details of the qualification criteria of state applications, there is ample historical and legal precedent WRT the aggregation rule. It also conforms with plain common sense.
You ask, "why must applications be single topic?" A single topic can be remarkably broad in its effect. For instance, the "single topic," "Recovering and Strengthening the Tenth Amendment Powers of the Several States" would cover most if not all of Mark Levin's list of amendment desiderata in one swell foop. Each of Levin's items would be completely valid at the COS, because each is within the meaning and scope of the controlling "single topic." Each would be referred to the relevant committee for debate, to be voted on separately in that committee by a simple majority of that committee's commissioners. If passed out of committee, then each state delegation, each having one vote, yea or nay, will vote the measure. If it passes, it is eligible as a stand-alone proposed Amendment that can then be submitted for ratification.
So, a "single topic" doesn't necessarily mean only a single amendment can result. A "single topic" can result in multiple proposed Amendments, each of which would be subject to ratification separately.
If you want to call a convention just for the purpose of having one, without any structure or common purpose, you will likely end up with a three-ring circus that produces nothing. But Congress would likely never CALL such a convention. We need to be realistic about our prospects, which, as a practical matter, means never letting Congress use the excuse that the 34-state threshold has not been met. If there were 34 state applications using more or less identical language, Congress MUST aggregate them, and therefore could not find any constitutional or legal pretext to refuse to CALL the Article V COS.
The best idea I heard today was from the link that Hostage gave in his last to me. I do not have the name of the person who proposed this, but he said that what was needed is a "pre-convention of the States" to flesh out the issues, define the mission, and try to get everybody on the same page. Indeed, the ALEC Conference which developed proposed COS rules was actually a kind of "pre-convention convention" already. What ALEC did (so brilliantly, IMHO) with the rules should be the model of another "pre-convention convention," convened to flesh out the question, "What will be the subject matter of the COS?" and to articulate the state applications language in as uniform language as possible.
Then, I do believe, we will have our best chance to convene an Article V COS.
Just some thoughts, FWTW.
Thanks so much for writing, Jacquerie!
The second thing is that there are now 4 states applying for a convention to address Mark Levin's and ALEC's concerns. Georgia was the first to apply, and the other three states have copied Georgia's language. Research Georgia's language to see how the states are framing their applications.
The third thing is that the ALEC-sponsored pre-conventions are doing precisely what you wish with respect to agreeing on application language and internal rules of procedure. This is to occupy legal ground before Congress can claim it and try to impose its own rules.
Everybody in the ALEC effort is doing his part to set up the precedents that will apply not only for the first convention, but for all subsequent conventions. It's a way of finessing Congress, the political parties and the Beltway power brokers. This effort is cautious and careful in defining the legal playing field.
Delegates will be strictly controlled by state commissions. If a majority can't be found to agree on one or more amendments to send home, the convention will adjourn. No problem, right? But with our country headed into the arms of a police state, I doubt that would happen.
Avoid static analysis. What is all-important is the change in national attitudes a convention will bring about. The mindset of the nation will change, knowing that a regular convention of the sovereign states on behalf of the people exists to look over the shoulders of the Uniparty. Knowing that a periodic convention will be held will lift the morale of the American people, as well as serve as a warning to all statists in DC.
If Article V truly represents a societal right of the nation, (it does) there should be no reluctance to conduct annual conventions.
The American people will not sell themselves into slavery.
I stand GLADLY CORRECTED by you in this matter of "petition" vs. "application." The states cannot appear to be going to Congress hat-in-hand, as if begging the "master" for some crumbs from his table. As you wrote, "The states are not subordinate entities, but equal, in this situation." That is, WRT an Article V COS. Thank you for pointing this out, Publius!
As to the Georgia language: Is this found at the entry POM–285, of the Congressional Record — Senate, dated July 9, 2014? Just read it. This application gives as its subject matter:
That the General Assembly of the State of Georgia hereby applies to Congress, under the provisions of Article V of the Constitution of the United States, for the calling of a convention of the states limited to proposing amendments to the United States Constitution that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress....Then it had the good sense to provide an "anti-aging" mechanism, and frankly states it is (wants to be) subject to aggregation with other states' applications that bear on the same subject matter.
On a quick review, I see that the Georgia language is virtually identical to the applications language of Alaska and Florida. Other recent applications — Louisiana, Michigan, Tennessee — seem to limit their scope to a balanced budget amendment. That's only one of the items in the Georgia et al. applications. That being the case, I wonder whether Congress would aggregate all six. What do you think, Publius?
I thought this was a simply brilliant insight:
...the ALEC-sponsored pre-conventions are doing precisely what you wish with respect to agreeing on application language and internal rules of procedure. This is to occupy legal ground before Congress can claim it and try to impose its own rules. [added itals]And indeed, I found Natelson's draft of proposed convention rules cautious, careful, and pro-active in defining the legal playing field, with an especial view to warding off potential congressional and/or court challenges, down the road.
Thank you so very much, Publius, for your highly instructive essay/post!
I would prefer to see Delegates (a/k/a Commissioners) controlled by convention RULES that all state delegations (a/k/a state commissions) have sworn to uphold and submit to. Or is that a minor quibble?
You wrote:
Avoid static analysis. What is all-important is the change in national attitudes a convention will bring about. The mindset of the nation will change, knowing that a regular convention of the sovereign states on behalf of the people exists to look over the shoulders of the Uniparty.I rarely do "static analysis," for the world is ever dynamically on the move, and thus refuses to reduce to "static analysis" for its full description. It is always more than what "static analysis" can describe.
I very strongly empathize with your sentiment that American society/citizen psychology would get a remarkable boost from a successful Article V COS. Just let's not get too far ahead of ourselves: FIRST we have to have a FIRST successful COS. That done, we know how to have another.
But again, FIRST you need a FIRST one. I would urge all those who care about their constitutional liberties to concentrate their efforts on forcing the necessary constitutional CALL, which comes only though Congress.
To do everything that can be done with that result clearly in view.
Subsequently, if we learn that the People of the Several States want to hold an annual COS, "to look over the shoulders of the Uniparty," well by then they will have learned how to successfully call one. So if they want one, they'll know how to get one.
When it comes to applications for a convention to address a balanced budget amendment alone, it gets a little more complicated.
For decades, Congress has passed the duty of tabulating applications to the Office of the Archivist of the United States. Likewise, the Archivist has been in charge of tabulating ratifications of constitutional amendments. Recently, thanks to the work of Rep. Stivers, the Clerk of the House of Representatives is now also in the loop regarding applications for an Article V Convention. This came about for two reasons. First was Mark Levin's effort. The second was the confusion over the applications for a convention to consider a balanced budget amendment alone.
Last year, a preliminary count from the Archivist showed that we had reached the magic number of 34 for a Convention of the States to consider a balanced budget amendment. However, a goodly number of states later rescinded their applications, and after that, a number of states that had rescinded later went and issued new applications. The Speaker of the House sent a letter to the Archivist asking for an audit of applications with the assistance of House legal counsel.
The audit showed that there were actually 26 valid, current applications from the states for a convention to consider a balanced budget amendment. This year, two more states piled on, increasing that number to 28. There are 6 to go to reach the two thirds threshold.
The 4 applications for the Levin/ALEC effort are not being aggregated with the 28 applications for a convention for a balanced budget amendment, even though there is a certain commonality of language. The Archivist is tabulating these two efforts in two separate columns.
The good news is that if the Levin/ALEC effort eventually gets 34 states to apply, the resulting convention would be authorized to discuss a balanced budget amendment as part of the "fiscal restraint" clause of the Georgia application. The "power and jurisdiction" clause would open up amendments to establish a procedure for state nullification, trim the ability of unelected bureaucrats and judges to write law, and remove the 17th Amendment. The "term limits" clause speaks for itself.
This is sound legal language to establish the convention's purview that leaves the states a lot of options to put the federal entity back into the constitutional prison that Madison designed for it. It's better and more inclusive than the simple language for a balanced budget amendment to which many states have already signed on.
Whatta surprise.
But I am very heartened by this:
The good news is that if the Levin/ALEC effort eventually gets 34 states to apply, the resulting convention would be authorized to discuss a balanced budget amendment as part of the "fiscal restraint" clause of the Georgia application. The "power and jurisdiction" clause would open up amendments to establish a procedure for state nullification, trim the ability of unelected bureaucrats and judges to write law, and remove the 17th Amendment. The "term limits" clause speaks for itself.Well, it seems to me all those states applying for a COS geared toward proposing a balanced-budget amendment might do best by rescinding their narrowly-focused original applications, and get on-board with the Levin/ALEC effort. The latter, if successful, would certainly address their balanced-budget concerns.
Plus it would give them the chance to weigh in on the other principal matters of the Levin/ALEC proposal: (1) remediating profound distortions in the distribution of "power and jurisdiction" of the federal v. state governments (definitely including the courts), so drastically departed from the Framers' Constitution; (2) term limits of federal office-holders, whether elected or appointed; (3) repeal of the Seventeenth Amendment, which relates to (1).
Thank you ever so much, dear Publius, for yet another illuminating essay/post!
If you check the COS website, you'll find that applications using Georgia's language have been introduced in the legislatures of "X" states. In "Y" states the application has passed one house of the legislature. In 4 states, the application has passed both houses and has been transmitted to the Archivist for tabulation: Georgia, Florida, Alabama and Alaska.
Thanks for the BEEP!
How so, dear YHAOS? Please share your thoughts?
I’ll check it out Publius. Thanks!
Well I hope the states will consider doing so. I'm all in favor of a balanced-budget amendment. BUT — a BBA, if ratified, would not reach to my main concern, which is the vertical distribution of powers as between the national government and the States, thus the people thereof.
The federal leviathan has invaded and usurped the Tenth Amendment RETAINED powers of the states. Our system of self-government requires, demands, the restoration of the original federal–state power distribution contemplated by the Framers. The federal government has a relatively few grants of power that are clearly specified in the Constitution. All other powers are retained by the states and the people.
To abandon this principle puts us in a topsy-turvy world in which absurdities are routinely spawned. Such as, for instance, the absurdity of five black-robed lawyers unilaterally imposing, against all reason and precedent, their preferential view of the "social welfare" on 320 million Americans, without their consent.
The "Georgia model application" for an Article V COS, while dealing with BBA matters, goes straight to stipulating the means and measures to restore and protect the Tenth Amendment powers of the states and the people.
I fervently hope and pray that an Article V COS will be convened soonest, around the subject matter of the Georgia model.
I would be excited if they just came up with an amendment requiring an annual budget; better a balanced one, but I’ll even settle for the existence of a budget requirement.
“No money shall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.”
Phht, just another dead letter.
Well, that might "buy us some time." Certainly if we do not rein in runaway federal spending, leading to unconscionable federal debts so vast that already it would take several generations of future taxpayers — our children and grandchildren at the very least —to pay down. But then Washington continues to pile onto the existing national debt load each and every year, like clockwork.
If this situation is not corrected, then America is going to fall into a Black Hole from which it CANNOT extricate itself. It's just a matter of time. Then we will witness a national "fire sale," total societal breakdown and social chaos.
So a Balanced Budget Amendment is urgently needed, since Congress evidently cannot discipline itself.
But to me, a BBA is just a "finger in the dike," an attempt to forestall an impending disaster for yet a little while longer. What a BBA does not reach to, is the roots of the disorder that is setting up the disaster.
To get to the roots of that disorder, I truly believe that constitutional amendments strengthening States' Tenth Amendment powers are most urgently needed.
Just some thoughts, dear brother in Christ. FWTW
That basically says they can spend what they appropriate and they have to keep a ledger.
Now, the Founders didn’t really imagine run away deficit spending. Not in my mind did they imagine anyone irresponsible enough to do that.
I do wish we had a balanced budget requirement in the constitution, but IIRC, last year was the first in 7 or 8 that they even put forward a budget at all.
As Betty Boop points out in #56, disaster is going to happen if we don’t come up with a requirement to balance the budget. We cannot forever continue to spend more than our income. All that said, I’m fairly certain that the initial effort by the financiers, once that amendment is in place, will be to extract the same amount of obeisance by forcing interest rates up so that payments on the national debt will bankrupt us.
Short of ‘shoot all the lawyers’, I’m not sure how to fix that. :>)
Well. That would be a good place to start. :^)
The interest payment on the debt is about a sixth of the budget, iirc. At the rate of 500 billion to a trillion in deficit spending per year, assuming this insanely low interest rate continues, the interest-only payment will match the amount of national income in roughly 2040.
Every dollar taken in by taxes, fees, tariffs, etc. will be spent simply to service the debt.
That leaves nothing to spend on any part of a national budget. THE ENTIRETY of that budget would have to be borrowed. Who would loan to such a spend-drunk sailor?
And that assumes these insanely low interest rates.
At that point, lenders would have zero expectation of ever getting their loaned money back, but more troubling, they’d have zero chance to get their interest money on those new loans. The answers for the nation at that point will be militarism: take the money from the lenders; confiscation: take the money from the people; printing: hyper-inflation; or bankruptcy and depression: probably the best route.
There is no limit on who might be sent to attend this convention, or what might be proposed.
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