Posted on 09/21/2015 1:41:00 PM PDT by Hostage
Dear YHAOS, you articulate a fairly common concern. Indeed, when I first heard that preparations for an Article V Convention of the States for the Proposing of Amendments to the U.S. Constitution were going on, well below the radar screen of public notice, I was concerned. So I did a little research.
One of the first things I found out was that there are certain “interested parties” who wish to foment as much public confusion as possible about the Article V COS, and to teach the public to fear one. Mainly for the reasons you gave, above. And mainly for the preservation of their own status-quo interests.
Getting down to nuts and bolts, your stated concerns are two in number: (1) “There is no limit on who might be sent to attend this convention”; and (2) “what might be proposed” at such a convention.
The first seems to have two main aspects: (a) the number of delegates (“commissioners”) that a given State might send to the convention; and (b) the qualifications (“credentials”) of the delegates, which goes straight to the matter of how they are appointed.
The American Legislative Executive Council (“ALEC”) has done an amazing amount of spadework in proposing and defining Article V COS rules pertaining to both these questions. (Which eventually would have to be passed by the entire Convention, on a State-by-State, one-vote-per-state simple majority basis, in order to take effect.)
ALEC’s current working document suggests five commissioners per participating State would be nominal; but in order for the COS to be recognized as proceeding from the States, ALEC can only suggest. Any State can send as many delegates as it wants to. But astute procedural rules, as developed by ALEC, limit opportunities for political demagogy — such as a maximum of two speeches by any State delegate on a single topic, limited to ten minutes in duration, that must be intervened by another delegate’s speech before the first delegate can make his second speech on the single topic — should keep sober deliberation on a fairly even keel, to the frustration of political opportunists.
As to (b), the qualifications of delegates. They are completely chosen by the States they are to represent. The historical precedents as to the manner of selection validate two methods, which IIRC have been concurrently accommodated in past conventions: appointment by State legislature; or by State popular referendum. I gather any State can choose whichever method it will follow. It is answerable to its own electorate for its decision.
Your second concern deals with the fear of a “runaway convention.” Let’s look at that.
In the first place, it seems to me we ought to consider the Article V constitutional recognition that the U.S. Constitution itself is subject to modification over time, to meet changing circumstances, to remove defects in its original construction that have become manifest over time. That is why the Constitution itself contains its own amendment process.
Which is what Article V specifies. Article V recognizes two legitimate channels of constitutional change: the proposal of Amendments by Congress, or by a Convention of the States (“COS”). Both methods are perfectly equal in constitutional dignity in all respects. Both methods are subject to ratification by three-fourths of the States (as Congress “directs,” whether by State legislatures or by State conventions called for the purpose) before they can be constitutionally adopted and made effective as basic elements of our rule of law.
A COS can only exist if it is “called” by Congress. To be “called,” 34 of the several States must show that they want to work together on an issue that calls for modification of our basic rule of law. The issue might be, for instance, a balanced budget amendment. Any State interested in pursuing this issue must file an Application to Congress that clearly indicates this purpose. If another 33 States file similar, or (better!) virtually identical Applications on this single topic, then Congress cannot fail but to aggregate them, and, finding the 34-state threshold having been achieved, MUST issue a CALL for a Convention of the States, recognizing a 34-state quorum as sufficient for the conduct of business for proposing amendments on the relevant subject matter.
Which has no effect whatsoever, unless 38 States ratify their product.
Which is to suggest that I think the “runaway convention” fear is unfounded. For if a Convention has been called on the basis of subject matter “X,” then you can’t legitimately redirect the Convention to subject matter “Y.”
If you do, you’d get killed in Court….
Anyhoot, dear brother in Christ, just some thoughts, FWTW. Hopefully, you might find some of them helpful. Thank you ever so much for your reply!
The process seems complicated enough that we may actually come through it unscathed.
Actually no. The courts have nothing to do with the convention process, and neither does Congress, other than exercising the ministerial duty of calling it, i.e. setting the time and place. If you check the various links I posted a month or so ago, you'll see. If a Convention of the States convened to address Subject X goes "free range" to address Subject Y, the safety valve is the requirement that 38 states ratify. Neither Congress nor the courts can legally step in.
If the best thinkers in nine states each came up with a unique improvement idea for an amendment to the Constitution and wanted an opportunity to convince the legislatures of the 13 states, in debate, of the worthiness of their ideas, Article V would not permit this?
Given the rustic wilderness of the times, it was the intention of the Framers to first have these nine unique ideas discussed privately in order to get nine states to submit same subject applications for a CoS, only to have the debate again within the jurisdiction of an Article V convention?
Given the mail of the times and the distances to be traveled, it is unreasonable to assume that the Framers expected the logistics and time necessary to get nine states to coordinate on a single subject convention before calling for one. A pragmatic interpretation would suggest that the Article V convention was for the purpose of determining if there was commonality sufficient to warrant an amendment.
If it was known beforehand and generally agreed that an amendment was needed, the states would simply have told their Congressional members to do it in Congress.
-PJ
I didn't mean to suggest that the Courts have a role in any of this, any more than Congress does. They are completely "out of the picture" while the "sausage is being made." And completely out of the picture of the ratification process, once the mode of ratification has been stipulated by Congress.
What I did mean was that, any constitutional amendment proposed and ratified in such an undisciplined, sloppy manner would be challenged in Court as having been passed and ratified in an unconstitutional manner. Thus deemed to be NOT a valid constitutional amendment, after the fact.
Do I worry about nothing here?
Pragmatically speaking, how does one convene a convention about anything, without people first corresponding together to find commonality about proposed subject matter? Especially if great time and distances have to be traversed in order to do this?
On such a basis, I'm fully entitled to call such a thing a "frat party," nothing more.
"Pragmatics" only takes you so far. And then, you have to start looking for the underlying commonality of substance that drove such "pragmatists" together to resolve commonly-perceived problems in the first place.
My sense is Libertarian philosophy does not reach to this level of the problem.
Might you perchance be a Libertarian?
betty boop's point was that if the COS rules are agreed to talk about Subject X and not Subject Y, then the rules allow for the COS' elected presiding officers to quash any introduction of Subject Y and for members to raise enforcement of such matters in a point of order.
Here is the relevant rule:
Rule 12. A motion made and seconded, shall be repeated; and if written, as it shall be when any member shall so require, shall be read aloud by the secretary or transmitted to each commissioner’s pre-designated electronic device before it shall be debated. (16) No motion, other than a procedural motion, shall be in order unless germane to both the subject matter specified in the state applications on which Congress called the convention and to the subject matter specified in the convention call. (17)
where (17) refers to the following Endnote:
(17) This rule provides that a substantive motion is out of order unless germane to the subjects in the applications and call, whichever is narrower. Normally the subject matter of the applications and the call would be the same. In some cases, however, some of the 34 applications that trigger a convention on a particular subject might mention extraneous subjects. This language makes clear that the convention is to consider only subjects on which at least 34 applications agree, and which are therefore stated in the call.
Rule 3 also provides for enforcement of the rules of order. Should there be an attempted takeover by a faction that seeks to steer the COS to subjects that are not called by the COS, the sergeant-at-arms is empowered, under direction of the president, to secure the good order of the house.
The prospect of an uncontrolled COS is not possible under these rules of order.
From the clear wording of Article V, followed by comments from The Federalist, the place to discuss amendments is at the convention.
To continue your clear train of thought and placement from 1800, imagine today if 34 states pass 34 distinct, absolutely unrelated applications. The states meet in convention. Suppose further that the states limited their delegations to consider and vote for only those items submitted in their respective applications. Perhaps the other 16 states don't even show up.
The convention would meet, and quickly determine there wasn't enough support to send amendment proposal(s) back to the states.
The convention would adjourn. Delegates go home. What harm done? None.
It is why the states should meet in convention every year. If there is nothing of collective consequence to consider, so be it.
However, an annual convention of the states would have an enormous effect on Sctous, and the Executive, even if it rarely overturned Scotus decisions or regulatory agency diktats. It would also force a nationwide debate on the nature of government, freedom, and so many other fundamentals that the Left so easily gaffs off today.
(1) The standing committees shall include rules, credentials, administration, fiscal restraints, federal jurisdiction, and term limits. (29) The convention may create ad hoc committees.
There is the out; if a convention is allowed, it will ultimately debate whatever it wishes to debate.
For the 21st Amendment, Congress specified ratification by state ratifying convention, and we have precedent in place for that dating from 1933.
I would have problems imagining a "sloppy" ratification process. We've tested this one over 200 years.
I like those rules. Natelson and ALEC are war gaming this at a very granular level.
That's why Congress was designated to receive the applications, because given the times it was more practical for legislatures to give the applications to their Senators (remember, pre-17 thamendment) to convey to Congress as the state's intent. That was Congress' role as aggregator, to use your term.
States didn't usually communicate with each other directly, they did so via Congress. They weren't ignorant of the sentiments of other states; they read newspapers and used Congress on their general purpose convention of states for the purpose of Article I legislating within the framework of the Constitution.
Might you perchance be a Libertarian?
Article V was for states to use when they felt that the federal government was somehow deficient in serving their purpose. Today, people forget that the states and the people rule, having delegated limited power to the federal government. You are sounding like the states are there to serve the federal government, and have to unite in some way to convince the feds to let them meet to discuss how to change their own method of governing.
-PJ
It would go better if you asked questions rather than act as if you’re pontificating rule meanings and rule policies. As it is you show you don’t understand the meaning and utility of ‘ad hoc’ and its place in committee.
Ad Hoc means formed for a particular purpose apart from the general convention. It does not mean that such purposes will ever reach the Convention floor nor is it possible. An Ad Hoc meeting could range from addressing the conditions of the Convention facilities restrooms to overturning the Constitution in favor of Sharia Law. The Ad Hoc committee members can discuss whatever they are purposed to discuss but it does not mean the discussion is allowed on the Convention floor.
Committees do not vote for the larger assembly which in this case is the Convention. They ‘report’ to the members (commissioners, delegates) of the Convention. When a vote comes before the Convention of which there is a quorum, any matter that is out of order may be called on a point of order and a motion may be made to strike the matter according to whether the issue is germane to the subject matters that at least 34 States subscribed to and approved. The commissioners are serious legislators who will with probability one ignore any distraction from the subjects their states signed on to.
The President can immediately strike out matters and motions that are not germane without debate and allow a time for appeals. In all cases, the time limits on all members on any matter are limited allowing the Convention to proceed along in a timely and orderly manner.
Rob Natelson, Michael Farris. Mark Meckler, Mark Levin and Randy Barnett aren’t giving an ‘out’ to anyone. The rules restrict both subject matter and set time limits. It is impossible to takeover the Convention for unscheduled purposes under these rules.
I would like to see you come up with one, just one Ad Hoc Committee discussion that is not conforming to the required subject matter and then explain how it would make its way out of committee onto the floor and survive a motion to strike.
I am not dazzled by celebrity lawyers. I've read Natelson’s work. His contention that single subject applications are required is unsupported nonsense.
Four hundred applications and no convention. That isn't what the framers intended for a free people to preserve their freedom.
The only fly in the ointment I see WRT your proposed annual convention of the states, or any other regularly occurring periodic convention, is that such a convention would probably itself require a constitutional amendment to bring it into constitutional effect, because it would be a major institutional or systematic change that goes straight to the constitutional distribution of powers as between the national government and the States and the people thereof.
Though certainly I am completely in favor of "a nationwide debate on the nature of government, freedom, and so many other fundamentals that the Left so easily gaffs off today," I just don't see how such a thing can be "forced" under our constitutional system of government.
* * * * * * * * * *
Article V....
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.
***
Evidently, I'm not reading Natelson's proposed Article V COS rules the same way you are, dear Jacquerie.
RE: the matter of "ad hoc committees."
Natelson's rules presuppose that the COS will be substantially devoted to the issues delineated in the Georgia Application, which are three in number, each with its own standing committee: fiscal restraints (e.g., a balanced-budget amendment), federal jurisdiction — particularly viewed through the lens of the Tenth Amendment — and term limits. These are qualitatively different than the standing committees on rules, credentials, and administration, which refer to the organization and conduct of the convention itself.
The fiscal restraints, federal jurisdiction, and term limits standing committees deal, not with convention organizational matters, but with the very substance and purpose for which the convention is called.
Natelson's rules allow for the appointment of "ad hoc committees," which are appointed by any standing committee in order to enable it to execute its business. The ad hoc committees do not have a license to work on any business beyond the scope of the business of the standing committee that appointed them.
At least, that is my reading, my understanding. On that basis, I would have to conclude that ad hoc committees have no plenary power of their own; their work is confined to the mission of the standing committee that appointed them. And this means that no ad hoc committee has the power to "ultimately debate whatever it wishes to debate."
Just my thoughts, FWTW. Thank you so much for writing!
Had they had determined the need for identical applications, the debates would have reflected such, and the final product would have clearly demanded identical applications.
Not only did neither occur, the exact opposite was debated and incorporated into the constitution.
> “Natelson’s rules allow for the appointment of “ad hoc committees,” which are appointed by any standing committee in order to enable it to execute its business. The ad hoc committees do not have a license to work on any business beyond the scope of the business of the standing committee that appointed them.”
That is correct except that the rules stipulate that the Convention may create them, not just the standing committees.
> “On that basis, I would have to conclude that ad hoc committees have no plenary power of their own; their work is confined to the mission of the standing committee that appointed them. And this means that no ad hoc committee has the power to “ultimately debate whatever it wishes to debate.””
No matter, it is moot. Committees do not vote for the entire assembly, the Convention as it is. Committees work to reach agreement and consensus. They then report to the entire assembly. Motions follow to vote on findings of committees or for any motion brought by any commissioner (member of the assembly).
Hypothetically and absurdly, should the Convention create an ad hoc committee to explore for example replacing the US Constitution with Islamic Sharia Law, and such committee brings its finding to the Convention floor on a motion for a vote, a member need only raise a point of order that the proposed vote is out of scope with the Conventions subject matter. The President can either strike the motion for vote or defer it to the Rules Committee, all without debate. If there is an appeal of the President’s decision, the appeal will likely go to the Rules Committee. In any case the motion dies or the Rules Committee returns its finding. All of the above is based on a hypothetical absurdity which has probability zero.
The above combined with strict time limits of the Convention’s proceedings makes it impossible for the Convention to become uncontrolled.
Nattelson et al have done a stellar job amassing the history of conventions and the principles of good order to create a set of rules that will keep the COS on track addressing the mandatory subject areas.
(1) The standing committees shall include rules, credentials, administration, fiscal restraints, federal jurisdiction, and term limits. . . .
it appears to me that every suggested amendment from Mark Levin's Liberty Amendments could be motioned for consideration by the federal jurisdiction committee. They are precisely the sort of structural changes that must be approved by the convention and submitted to the states.
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