-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
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.