Third Party & Independents Archives

Time to Make Congress Obey U.S. Constitution

No matter how awful you think our government and political system have become, odds are you do not know about this travesty of justice, an incredible failure by the two major parties to honor our fabled Constitution. This failure has removed the sovereignty of we the people, and made Congress much more powerful than it should be.

Let me acknowledge that even though I have been pegged as "Democracy’s Mr. Fix It", until recently I too was ignorant about this blatant disregard for a key part of our Constitution. We desperately need to inform Americans about this repugnant situation.

Our Founders were acutely aware of the need to create a mechanism for we the people to, when necessary, circumvent the political power of the federal government and the refusal or inability of Congress to do what is necessary. They built in a critically important form of direct democracy that, however, our elected MISrepresentatives have refused to implement. Here it is: Article V of our Constitution specifies two distinct routes to amending our Constitution: “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…”

Conventions to consider constitutional amendments should be seen as peaceful revolutions – a remedy specified in our Constitution for addressing a national government and political system that no longer serves public interests. Congress has been so corrupted for so long that it has blatantly ignored the constitutional provision for conventions. It wants exclusive power over amending our Constitution in violation of the Constitution itself.

The key point is that our Founders gave states this route to address excess federal power. All of the twenty-seven amendments thus far incorporated into the Constitution were proposed by Congress. Granted, Article V has sparse language. But clearly Congress “shall” call a convention to order when the only stated requirement is met, namely that two-thirds of state legislatures request a convention. There are NO other stated requirements. So, have state legislatures requested a convention and has Congress fulfilled its constitutional, legal responsibility and called for one?

Yes, a sufficient number of state legislatures have requested a convention. With 50 states presently in the Union, there must be applications made by lawmakers in at least 34 states in order to trigger the constitutionally specified convention option. In fact, there have been 567 applications from fifty states for a convention, but Congress has never called for one. All the state applications are there in the Congressional Record and Congress has ignored them. Legally known as laches, things that are ignored on purpose. Congress has never even established a procedure for tracking state requests for a convention. Congress’ power-grabbing behavior is by itself sufficient reason why Americans should want a convention – one possible amendment would be to amplify the language on conventions to make Congress more responsible.

As noted in Wikipedia: “The framers of the Constitution wanted a means of sometimes bypassing a potentially unwilling Congress in the amendment-proposing process. They thought that there could be circumstances in which Congress, for self-serving reasons, would ignore valid pleas to amend the Constitution and so the framers established an alternate means of proposing change in the Constitution.” Just as an example, consider that a convention might decide to alter or abandon the Electoral College system for choosing a president, specify the requirement for balanced budgets, allow presidential line item vetoes on spending, make Election Day a national holiday, or provide for national citizen ballot initiatives.

This point is especially important. As noted in Wikipedia, Congress has never responded to many requests from states by calling a convention, supposedly because those applications requested amendments on different subjects. However, Article V does not explicitly require that state requests must specify what amendment(s) they are interested in pursuing. Congressional inaction has contributed to the impression that states must petition for the same amendment(s). However, federal courts have never ruled on this "precedent," nor should they. We do not need any judicial decision, because Article V does not require that states specify anything other than their desire for a convention. Logically, to require states to signal in advance what they were interested in doing would create the potential for congressional refusal to call a convention. Thus, the Founders knew what they were doing when they did not require such notification.

As if the illegal inactions by Congress is not enough to make your patriotic blood boil, the Supreme Court rejected hearing a case that claimed it was illegal for Congress to avoid calling a convention. In August 2006 Bill Walker filed a petition of close to 1,000 pages. He correctly emphasized that “On its face, that fact alone compels Congress to call a convention, which it has not, and compels the judicial system, under its oath to support the Constitution, to enforce that document’s provision and declare such inaction by Congress, unconstitutional.”

On October 30, 2006 the Supreme Court denied certiorari to this question in Walker v. Members of Congress (06-244). By refusing to hear the case it allowed the direct text of the United States Constitution to be vetoed with impunity by Congress. What is so disturbing is that the Supreme Court did not think it worthy or that it had a Constitutional duty to address the power of Congress by itself to veto an explicit clause and provision in our Constitution. Thus two branches of the federal government violated their sacred, sworn oath to obey the Constitution. Simply put, the refusal of Congress to issue the call for a convention even when a sufficient number of applying states exists is unconstitutional, and the refusal of the Supreme Court to rule that Congress has acted unconstitutionally was itself unconstitutional.

Imagine this: Congress upholds its oath and issues a call for a Constitutional convention. The states would hold special elections for delegates; the delegates would convene and make their own rules for reaching decisions. Once all the delegates had proposed their ideas and agreed on what amendments should be ratified by the states, the convention would end. The proposed amendments would then be sent out to the states by Congress; the ratification process would begin. Once any single amendment garnered the approval of 38 states – a high hurdle – it would be amended to the Constitution. A host of electoral reforms could be enacted to rejuvenate our American democracy.

If you truly believe in our constitutional republic and representative democracy with safeguards, then you must demand that every presidential candidate take a clear, unequivocal position on this Article V constitutional convention requirement. It is time for the Executive Branch to stand up for constitutional integrity. Every single one of us should demand from whoever becomes our new president in 2008 a commitment to pressure Congress for a convention. He or she should do that soon after taking office – after swearing to defend and uphold our Constitution. Should we accept anything less?

How could candidates for the presidency say that a clear constitutional clause is not valid? Nor must they be allowed to do what Congress has done – simply ignore the whole Article V convention issue. Take a stand! Inaction means our Constitution will suffer three strikes and have even less credibility with the many U.S. citizens and people worldwide who already see American democracy riddled with hypocrisy.

There is no rational basis for fearing a “runaway” convention that somehow would destroy our constitution or our democracy. After all, a convention can only make proposals that three-quarters of the states must ratify to become actual amendments. What we clearly have to fear is a continuation of two-party control of our political system and that is wrecking constitutional protections and sacrificing the wellbeing of working- and middle-class Americans in order to satisfy the greed of rich and powerful elites. Those people against an Article V convention are status-quo preservationists.

And where the hell is our mainstream news media? Is not obeying our Constitution worthy of their attention?

Posted by Joel S. Hirschhorn at January 5, 2007 4:50 PM
Comments
Comment #201658

Damn. One the face of it, you make a good case. I’ll postpone further comment until I educate myself a bit more on this issue.

Posted by: Trent at January 5, 2007 6:05 PM
Comment #201675

Beyond the question of whether Walker can speak for the states, the real question is whether or not a sufficient number of states at once have made such a call. This isn’t cumulative. My understanding is that this 567 number represents all such calls throughout American history. Your real question is whether there have ever been a sufficient number together at once for this to actually happen.

I don’t think there has. I think it’d be a pretty newsworthy event, to be sure. If there never has been, then Walker is stacking misunderstanding on top of misunderstanding, and the dire constitutional/judicial emergency you suggest is a mirage.

Posted by: Stephen Daugherty at January 5, 2007 7:45 PM
Comment #201677

Stephen, where is the language that stipulates the convention request must be simultaneous? What prevents states over the course of several years finally accruing sufficient number for a convention?

Posted by: David R. Remer at January 5, 2007 8:21 PM
Comment #201680

Is 567 the number of states that have called or the number of applications calling for?

An application for is in itself a minimum of 2/3 of the states. No 2/3 = no application.

Also… I am reading my pocket Constitution which is on me 24/7/52 and I am noticing in Article. V. “as the one or the other Mode of Ratification may be proposed by the Congress”.

Congress holds no power over stopping such conventions. There is something missing from such story.

Congress is responsible for ratifying such admendments by 3/4 of states or conventions in 3/4 thereof.

So the only real power Congress has over this is that they can just… not approve… such amendments, which is with-in their constitutional right.

This would also explain why the Supreme Court wouldn’t hear the case, as this article does not give the states the power to make amendment, only to propose them.

Posted by: Bryan AJ Kennedy at January 5, 2007 8:41 PM
Comment #201682

David R. Remer-
I don’t think it’s reasonable to interpret it otherwise. The whole point of setting such a high threshold is to ensure that only when the vast majority of American states decide to do a wholesale constitutional rewrite that it be done. The only way it works is if we take that to be applications all at once.

I think you’ll find that no votes are explicitly required by the constitution to occur all at once; however, it’s long been the convention regarding such votes that they be simultaneously done; thus, an election day, rather than an election month.

So, I don’t think there’s any argument in cumulative calls for Article V conventions, especially when you consider that it all averages out to less than three states a year calling for such a convention for each year of our nation’s entire history. Unless it’s happening all at once, it’s meaningless.

Posted by: Stephen Daugherty at January 5, 2007 8:46 PM
Comment #201684

Bryan AJ Kennedy-
I believe its the total number over our history.

Posted by: Stephen Daugherty at January 5, 2007 8:52 PM
Comment #201686

Stephen,

Yeah, I would imagine so. I just am wondering if 567 states called for it or if it was called for by 2/3 of the States 567 times.

Either way it doesn’t really change the fact that the constitution states that the Congress has the final power of ratification.

I was more or less curious for the sake of trivial purposes.

=)

Posted by: Bryan AJ Kennedy at January 5, 2007 9:25 PM
Comment #201687

This is all pretty confusing. Is there a link, an article, something which spells out which state legislatures are involved here and when this all occurred?

If two thirds of state legislatures voted to go forward, I don’t see how the Congress could stop them, but the idea of cumalative votes over an unspecified—perhaps limitless—time frame is absurd.

Does a political candidate win an election by adding the votes from other campaigns to his totals? Can Congress pass a bill that would otherwise be defeated by simply adding their votes together from two different sessions? It doesn’t make sense.

Posted by: Loyal Opposition at January 5, 2007 9:29 PM
Comment #201690

Loyal,

The thing is that Article. V. does not state that the State Legislatives can amend the constituion only create new amendments that must still be ratified by Congress.

So they can make them and propose them to Congress. Then Congress would vote to decide wether or not it would actually pass.

I am guessing what happened was Congress said “We aren’t going to ratify anything you create” and the States were just stuck.

Posted by: Bryan AJ Kennedy at January 5, 2007 9:40 PM
Comment #201693

Joel,

It’s all well and good that you want to point out this issue.
Why does the mainstream media not run with it? Could it be that it’s over most everyone’s head? including the so-called reporters we listen to on a daily basis?
It’s not exciting enough?
It doesn’t hit close to home for people?

To me… there are plenty of other reasons that you can show if you want to point out that Congress is over-reaching.
There are plenty of things that they have taken control of that should not be in their hands -
Many issues that states can deal with and settle on their own.
Things that people used to help each other with and now rely on the federal government for..
The federal government has become our parent, our babysitter, our church, our neighbor, our boss, ( I could continue on…) AND in my opinion some of them even believe they can walk on water…

It’s not the ‘American Way’ to run to the Fed. government to solve all our problems.
They can’t anyway.

I know I changed the subject… the people and the media will not pay attention if it doesn’t actually hit home or have scandal written all over it.

Posted by: dawn at January 5, 2007 10:27 PM
Comment #201695

Stephen, you are forgetting that in the past, (even today for a few) state legislatures met at differing times in a calendar year and many only for very short periods of time. Ergo, the vote would have to span at least the time it would take for all 50 states to have convened their legislature and concluded their sessions.

Posted by: David R. Remer at January 5, 2007 11:19 PM
Comment #201696

dawn-
The main reason for not running with it is that it’s a misinterpretation in the first place. News organizations don’t like to embarrass themselves by running such stories.

I think it’s somewhat foolhardy to give this guy credence because of the “hidden” nature of his case. Some people earn obscurity. This man is one of them.

As for the public? I think generations of American politicians and thinkers have shot themselves in the foot by assuming that the failure of their arguments to diffuse into the conventional wisdom owed to the lowbrow/low IQ culture of Americans.

It’s easy to claim that your argument isn’t getting better play because Americans are idiots. It relieves you of the need to actually develop and work out support for your ideas in the form of clear, non-esoteric premises. In short, it foster a kind of elitism that encourages lazy, low-quality argumentation.

Americans are smart enough to look out for their best interests.

Posted by: Stephen Daugherty at January 5, 2007 11:20 PM
Comment #201699

Stephen,
‘Americans are smart enough to look out for their best interests.’

Isn’t that what I said?
Make the case and explain why it is in everyone’s best interest to pay attention.


‘It’s easy to claim that your argument isn’t getting better play because Americans are idiots.’

More people can sing the theme song to ‘Gilligan’s Island’ than know the words to the ‘Star Spangled Banner’?
More people can name the ‘American Idol’ winner than who the Majority leader in the Senate is?

Until it hits close to home …or benefits someone personally… or hits them in the pocket book…

What is the definition of ‘idiot’?

Posted by: dawn at January 5, 2007 11:36 PM
Comment #201702

My definition would be anyone that underestimates their fellow Americans. Or feels they are superior to them.

Posted by: womanmarine at January 6, 2007 12:07 AM
Comment #201704

Stephen said: “Americans are smart enough to look out for their best interests.”

The 45% to 55% that don’t vote nullifies that statement right up front, Stephen.

And of those who do vote, how many would you guess make informed choices? My answer is about 45% of those who do vote. Ergo, only about 26% of the Americans eligible to vote are smart enough to look out for their best interests.

I give you those who voted for Bush in ‘04 when there was ample news and information for them to vote their own best interest, and would not vote to reelect him today. If they were smart enough to vote their own best interest, they would have done their homework before he was reelected, not after.

Posted by: David R. Remer at January 6, 2007 12:09 AM
Comment #201705


There are 29 atates that have called for a Constitutional convention. There were 32 but, Alabama, Florida and Louisiana recinded ther calls. 34 states are needed to have a convention.

Posted by: jlw at January 6, 2007 12:16 AM
Comment #201707

The cattle farmers in Colorado -

The people in N.O. after Katrina -

Any difference?

Posted by: tweaky at January 6, 2007 12:47 AM
Comment #201745

I have to admit, I’m getting a little rusty on the Constitution. I had to go back and read Article 5. Good thing I keep a copy near the computer.
Congress hasn’t only violated Article 5 but rest of the Constitution as far as I’m concerned. But this thread isn’t dealing with that. If the states have been asking for a convention to amend the Constitution and Congress has been ignoring them then Congress needs to be forced to hold the convention.
I agree with David. I don’t see anything in Article 5 limiting the time the states have to request a convention.

Posted by: Ron Brown at January 6, 2007 1:48 PM
Comment #201747

it is in the interests of americans to convene a convention so delegates can propose things we all know the congress never will.

if anyone has time to review Federalist 85 you will find that hamilton and the founders all understood the convention call to be triggered by a simple numeric count, nothing more, nothing less, because they knew corruption would become institutionalized at some point and the congress would look for a reason not to share power with the states.

the 567 state applications are part of the congressional record, the majority of which were cast from the mind-1960s to the late 1980s into the early 1990s.

imo, it is time for a national convention and we can have it if we make it an issue.

Posted by: john de herrera at January 6, 2007 1:51 PM
Comment #201748

From the article author:

There is a lot of bad/wrong information out there, so listen up:

Congress does not ratify constitutional amendments, only three-quarters of the states can ratify amendments; congress can choose to have states use legislatures or state conventions.

That huge number of state applications for an Article V convention come from 50 states. More importantly: there is absolutely nothing written in Article V to suggest that the necessary two-thirds of states must come during a certain period of time - period, end of story!!

Congress has the constitutional authority to call an Article V convention; the states themselves have no constitutional authority to call their own convention. So, yes, congress has for decades simply chosen to ignore state requests. Why? They want to keep all the power when it comes to formulating possible constitutional amendments; they fear what the constitution clearly intended: namely, a convention of state delegates that congress cannot control who can devise one or more amendments to correct for the failure of congress and even the courts and the executive branch to effectively address national problems.

Article V conventions would make American democracy more authentic and responsive to “we the people.” All the wealthy and power elites that run our plutocracy greatly fear an Article V convention and, sadly, they have succeeded over the years in making the public fear an Article V convention, when in truth what the public should greatly fear is allowing the current corrupt and harmful political system keep running and ruinging our country and much of the world.

Posted by: Joel S. Hirschhorn at January 6, 2007 1:54 PM
Comment #201764

I’ve read absolutely nothing on this thread that factually challenges what Joel is saying.

Posted by: Trent at January 6, 2007 4:05 PM
Comment #201811

The whole point of having three-quarters of the states being necessary to call a constitutional convention is so that any overhaul of the constitution requires a vast majority of American states to support it at once. If it were

a) so easy to change constitutional law,

or

b)the intention of the founding fathers for things to work this way,

It would have happened by now. Hell, we have a fricking civil war, and this didn’t happen!

The point of this high threshold is to make constitutional law stable, not to have the sands shift every time a number of these calls accumulate. In fact, if you really think about it, this is the same threshold used to determine whether the constitution would be ratified, and they didn’t keep that vote open for for decades on end.

So, in essence, they must have been saying that to call a constitutional convention, you must meet or exceed the public mandate that put this constitution in place.

So, this argument about accumulated calls is bull. The whole point is to have the movement to call a new convention be equal in proportion to that which ratified the conclusions of the original.

Also, if you consider the Article V requirements in that context, then it’s pretty obvious that the point wasn’t to make it easy for a majority to overturn the old order. It’s an inherently conservative measure, compared to a threshold of two thirds, much less a simple majority of just over half. If you look at the requirements for constitutional amendments and conventions, they are not that easy.

Some, though, want it to be. But we can’t always get what we want, and many times, that’s a good thing.

It should not be easy to change the law of the land. The constitution was meant to stabilize a country, with some room for change, not make it subject to the whim of the public, the fashion of the day. Our government changes, but only if we really want it.

I think if we really want to change society, though, we typically don’t have to go through all that rigamarole to do it. That is, unless you have people looking to make radical changes without consulting the required number.

This constitution was written to get in the way of well-intentioned and malevolent abusers of power alike, for in the end, the evil they’re both capable of is simply a product of the excessive power they’re willing to wield over unwilling citizens.

I’m no fan of the status quo, but I know enough history and enough about other governments around the world to know that hastily thought out and executed revolutons tend to work out not so well. What we’re looking for here is metastability, the ability to find new equilibrium, not forsaking it altogether.

Posted by: Stephen Daugherty at January 6, 2007 9:59 PM
Comment #201812

Stephen D. said: “is so that any overhaul of the constitution requires a vast majority of American states to support it at once. “

Stephen, all you are saying is what you wish the law said. But, and its a big but, THAT IS NOT WHAT THE LAW SAYS.

You are acting like Bush, saying the law is whatever he says it should be. Let’s act like we live in nation of law, and not men, and work with the laws as they are written, shall we?

Do you really believe the forefathers put that provision in for no reason? That would be the case if in fact they intended all states to express at once, KNOWING that all state’s legislatures met and concluded at differing times.

Logic goes a long way to understanding intent, here Stephen. Either it was a frivolous piece of language recognizing legislatures would not all meet and conduct business at the same time (they were after all, volunteer part timers, back then), OR the intent was that the states expression could be cumulative as states legislatures dealt with the issue on their own timetables.

I for one, do not subscribe to the belief that our forefathers embedded frivolous language into the Constitution as our Congress does so often into the laws written today.

Posted by: David R. Remer at January 6, 2007 10:31 PM
Comment #201814
There are 29 atates that have called for a Constitutional convention. There were 32 but, Alabama, Florida and Louisiana recinded ther calls. 34 states are needed to have a convention.

Posted by: jlw at January 6, 2007 12:16 AM

jlw, what is your source for this information?

Posted by: amani at January 6, 2007 10:53 PM
Comment #201815

David, the third option is that these calls for a convention are effective until they are rescinded by the state as jlw suggests.

Posted by: amani at January 6, 2007 10:55 PM
Comment #201819


amani:

Yahoo states with standing calls for a constitutional convention. I picked the first choice. The site also says that advocates for a convention say that if they get two more states, they will call for a convention and challenge the 3 state recinds in court.

It is a religious organization called the Council on Domestic Relations( by the grace of God and his ministering Angels.)

I thought they might be right leaning but, they are apparently left, anti-war, anti-14th amendment.

SWEET LIBERTY—— www.sweetliberty.org

Posted by: jlw at January 6, 2007 11:50 PM
Comment #201826

Stephen D.,

Congress typically places a seven-year time limit on state approval of Constitutional Amendments. It doesn’t require ratification at once.

I don’t understand why you think not requiring simultaneous requests from the states for a Constitutional convention would make ratification of new amendments too easy. Two-thirds of the states have to request a Constitutional Amendment, and three-fourth of the states have to approve specific amendments either through their legislatures or conventions. That doesn’t sound easy to me, and doesn’t sound like it would lead to a zillion amendments. At any rate, it’s a simple fact that the Constitution does not specify Constitutional convention requests to be made in one election cycle.

I’ve done some digging for information, but would like to find more. Someone said most of the requests for a Constitutional convention have been made since 1980; any link for that?

Posted by: Trent at January 7, 2007 12:17 AM
Comment #201843

thanks, jlw. I spent a little time reading through the website. There’s something you don’t see every day. A liberal, Christian, pro-gun, Dixie group that believes there is a conspiracy to dismantle the consitution by international business interests… It’s too bad they don’t list a primary source for their information on these calls for a constitutional convention.

According to wikipedia the language of article V is so vague that most of the details are up to congress’s discretion. Furthermore, since congress doesn’t have to follow stare decisis, they can change their interpretation of those details as they wish.

If at least two-thirds of the legislatures of the states so request, Congress is required to call a convention for the purpose of proposing an amendment. The requisite number of states never made such a request although two proposals have come just two states shy of the required number. There is much controversy as to how such a convention would operate, how its delegates would be chosen, the necessary vote required to propose a particular amendment, and many other lingering questions. The state legislatures have, in times past, taken advantage of the fear of the unknown by using their power to apply for a national convention in order to frighten Congress into proposing the desired amendment. For example, the movement to amend the Constitution to provide for the direct election of U.S. Senators began to see such proposals regularly pass the House of Representatives only to die in the Senate from the early 1890s onward. As time went by, more and more state legislatures adopted resolutions demanding that a convention be called, thus pressuring the Senate to finally relent and approve what later became the Seventeenth Amendment for fear that such a convention—if permitted to assemble—might stray to include issues above and beyond just the direct election of U.S. Senators.

Since Article Five does not make clear how the amendment-proposing convention is to be composed and operated, Congress—presumably through enactment of a Federal statute—could determine how the delegates are chosen and to provide for other procedural details.

Posted by: amani at January 7, 2007 3:33 AM
Comment #201862

David R. Remer-
The point is legitimacy. The point of keeping the period of a vote short is the same point there is to keeping exposure times short in photography: to create a distinct picture of the will of the people rather than a blur of changing events captured over time. We want to capture a clear, sure picture of whether the vast majority of Americans want this. We don’t want intervening legislative elections, we don’t want the period so large that fundamental political shifts take place, and a convention is called when the actual threshold at any one moment isn’t actually met.

The last time we held such a convention, the change in our government was simply radical. We went from a weak national government dominated by a legislature, the States holding most power, to what we have today. Such change or attempts at change can be dangerous to the stability of a nation if they are not backed by a sufficient mandate of the people. The founding fathers required the three quarters ratification for the constitution, and the equal threshold for a new convention for precisely that reason.

Change without mandate, is often change that is doomed to failure. Witness many of Bush’s policies. He tried to force things, and for his trouble, he’s broken much of the Republican’s Party’s power, and squandered the promise of his Presidency. If somebody uses the cumulative approach to call a constitutional convention when the mandate isn’t there, then they will doom themselves and the process to failure, and worse yet create more division as people nurse grudges over the undoubtedly contentious arguments that would accompany the convention.

I think a year or two is sufficient to take the kind of snapshot necessary, to give the states time to come into session and make their voice heard. I also imagine that if the need is there, they can initiate emergency sessions to to pass such resolutions.

Your either/or statement is a false dilemma. I believe they wanted change to be possible, but only to be the product of a profound shift in the will of the people, recorded in a timely fashion to ensure that the call has legitimacy.

What the people want is important, whether or not they’re right. Too many approach folks as if they are obligated to agree with them, as if they’re idiots if they don’t. Too many become so pessimistic about the people that this country draws its authority from, that they take refuge in political subterfuge and gaming the procedures to get what they want. This only makes things worse. Folks who don’t think of themselves as partisans end up behaving no differently than those they despise, because the flaw of failing to empathize with their rival does not limit itself to one group or another. The failing is common, the result the same: bitter strife, political games that undermine good policy; folks pushing bad legislation because it’s theirs, and they don’t want to question what their political comrades are doing.

Because I’ve had the chance to see from both sides of the divide, I’ve come to understand that although the differences of opinion are significant and real, so are the commonalities, even if we don’t acknowledge them.

I’ve also come to understand that what we’re discussing has real implications beyond what we can imagine. Democracy, the market, and other institutions centered around freedom don’t work because people are wiser than government or other authorities- the same imperfect breed of human being runs both our institutions and the public will. The people can be wrong and the government can be wrong. The difference is a matter of flexibility in correction. Democracies that lack a capacity for self correction are the most unstable, the most vulnerable.

As we have seen in our own lives, though, there is a capacity for overcorrection bound in there. If we were allowed we could second guess our way out of any viable solution to our problems, given the fact that all solutions take time to properly implement and examine.

There has to be a metatstable middle ground, with a critical threshold set up so that when change comes, its decisive but also conditional on ongoing approval. We have a plan we can stick to, and a means to change plans if they don’t work.

It’s not supposed to be easy to change something so basic as constitutional law. We set up vast infrastructures in order to accommodate its mandates. When we move to change such things, the Founding Fathers have written into Article V a threshold that guarantees that this only happens at a genuinely watershed moment in our history, and not before the public has pushed to that necessary extent.

Looking back over the last few years, we can undoubtedly see the consequences of a sharp shock to this nation’s system in terms of how we deal with the constitution. We see the violations left and right in the Bush administration, with Bush defying those provisions flagrantly. It’s at times like this that I am glad our constitution is not so easily changed, for if he had his way, I’m certain he would be persuaded by his staff of ideologues and his own sensibilities to attempt such change, and our problems would be more fundamental than a president trying to get away with violating the constitution; we’d be facing a man succeeding in rewriting his powergrab into it.

If you would not have him so easily change things, you must accept that you yourself cannot do things that way. America works because in this country people have mutually agreed through the constitution to not take up certain measures of power.

I think people are getting excited over a misinterpretion of the constitution, by a person who wants to change it despite the failure of a sufficient number of states to request it. He wants to game a loophole, and the Supreme Court, which interprets the law says that he cannot.

We’re getting into a problem here that is epidemic among the Republicans and others, where the legitimate authorities are being questioned for the most part because they stand in the way of some agenda, not on truly solid grounds of misconduct or anything.

Nobody here has provide a good legal argument to back this fellow. This is an extraordinary legal claim for which the only basis is a legal argument denied a writ of certiorari. Nobody’s even addressed whether this guy has the standing under the law to file this lawsuit.

We can argue all we want to about what we consider legal, but I get the sense here that the arguments we’re making are mostly made in ignorance of the law. We here are not the ones who determine the law. We set up a system to do that, to raise things beyond the whims of men, to attain the rule of law. We have to respect that if we want to get anything done as a Republic, rather than some degenerate form of tyranny. The real curse of partisanship is the willingness to sacrifice necessary limits on our behavior and our power in order to get what we want. Though you claim no party as your own, you would do well to beware the temptations of power that appeal to those who push for a cause.

Posted by: Stephen Daugherty at January 7, 2007 12:13 PM
Comment #201883

Stephen D.,

Disregarding that Article V does not mention time requirements, I agree with you that no time limits on state requests for a Constitutional Convention makes no sense. But 1-2 years seems to short — Congress generally provides seven years for state ratification of amendments it proposes; would you argue that seven years for the commonly used method to amend the Constitution is too long. If so, at least you will be consistent.

Stephen, most of us know that the Constitution in the interests of stability makes it difficult to amend the Constitution. No offense, but we don’t need a lecture on that. More to the point is the question whether having a reasonable time for requests (I’d submit seven years because of precedent) for state requests lowers the bar too far. Remember, even after a Constitutional Convention is called, three-fourths of the states still must ratify, as they must with the usual method of amending the Constitution.

From my reading of Article V, you can make the case that states need to request a Constitutional Convention for specific amendments — that is, you cannot total up all requests, just those on specific amendments. (The lengthly passage is one sentence, so if it appears obvious that Congress must propose specific amendments, then it follows that the states must propose specific amendments — that gets rid of the fear of cumulative requests for a variety of amendments.) That would require coordination among the states to request a Convention for particular amendments. That is not easy.

Your point that most of us are not experts in the law is well taken, but then, most of us are not experts in any of the topics found on Watchblog. When we vote, we do not generally vote as experts. I see Watchblog as a forum for education as much as anything else, and through debating these issues, we can each learn some of what we need to know to adequately understand an issue.

Posted by: Trent at January 7, 2007 2:09 PM
Comment #201904

Trent, very well written and cogent response.

Posted by: David R. Remer at January 7, 2007 4:16 PM
Comment #201908

Trent-
My argument for why we shouldn’t keep the vote open is the last seven years. Look at that and tell me that you could get a coherent picture of the political landscape, much less one that would serve as the political foundation of the extensive changes likely to come of a constitutional convention.

The stakes of such a convention would be high, and it would be very politically contentious. It has the potential to divide people in a way no other event in American history has.

You don’t call these conventions for a few select amendments. You call them because your party, your people have an agenda that you want carried out. If most people in America are not serious about this change, the results, failures as much as successes will create messes we’ll spend generations cleaning up.

As for expertise in law, you’d have to talk to my brother about that, but I know enough from what I’ve seen and heard around me to know that the law often turns on very fine distinctions, and that regardless of what we voters think should be done, the decision about what is done, especially in constitutional matters, rests on the interpretations of professionals. I’d be interested to know what those arguments are.

Posted by: Stephen Daugherty at January 7, 2007 4:32 PM
Comment #201909

Stephen D. said: “I think a year or two is sufficient to take the kind of snapshot necessary”

And those two words “I think” are the cornerstone of your argument. I took law courses, and while I am no expert with a law degree, I learned enough to know what I don’t know, and to proffer an educated opinion about that which I did learn about.

jlw is quite right, that the passage, was written vaguely so as to allow experience and time to determine the proper courses of action by those in the future, with some experience working with that new and experimental government erected in the Constitution.

And Trent is quite right, that cumulative amendments of differing contents were not intended to constitute the threshhold for a convention. But, that cumulative state votes on the same amending measures over time were intended to be valid for the reasons I cited as the reality of when and how legislatures met in the days of the founding of the government. Some legislatures of that day did not even meet annually. Ergo, a period of time was required for the Article to have any meaning or empowerment at all.

How much time? Not specified. But, if such time is to be determined by the courts, which challenges to your interpretation would no doubt yield, the courts would attempt to refer to the original intent of the founding fathers and the context of their day in their consideration. Especially with a conservative court.

Texas is a good example still today.

The Legislature of the State of Texas, operating under the biennial system, convenes its regular sessions at noon on the second Tuesday in January of odd-numbered years. The maximum duration of a regular session is 140 days.

It could take Texas as many as 3 sessions to ratify a convention for specific amendment measures, which equals 6 years.

Posted by: David R. Remer at January 7, 2007 4:34 PM
Comment #201936

Stephen D.,

Yeah, I’ve dug around a bit but haven’t found any legal analyses that seem unbiased. At any rate, I’m beginning to think there is a lot more smoke than substance here, and I’d wager there really isn’t a conspiracy to deny states their rights. If David R. is correct that cumulative requests for a specific amendment is what Article V intends, then apparently even by that standard we haven’t yet reached sufficient numbers for Congress to call a convention.

Like you, I don’t buy the argument that total cumulative requests for various amendments is what matters. But I’d like to see some expert opinions.

Posted by: Trent at January 7, 2007 8:09 PM
Comment #201948

Wikipedia has lots of good information on this topic. The SC has already ruled that Congress can set time limits (or not), at its discretion. Other issues we’ve discussed are also dealt with. Unless Joel presents other reasoning more compelling than he has so far, I’m satisfied no abuses have taken place.

Now it’s time to finally ratify the Child Labor Amendment!

—-

amani originally posted this link.

Posted by: Trent at January 7, 2007 9:57 PM
Comment #201957

Trent-
I think the precedent here is for taking several years to ratify an amendment. But for a constitutional convention? It should neither be necessary nor expected that it takes so long, because if people really want it, they should be able to push it out of most legislatures within a year at best and three years at worse; that is, the length of time during which we can expect all of the states to have at least one session in common.

If you take longer, you’re just going to bleed whatever immediacy is there right out of the move, not to mention risking getting somebody on board near the end who wasn’t on board in the beginning, or vice versa. It’s a simple question, and the answer should be had in the minimum of time so we know the state’s position as of this moment. That’s the only way we can be sure we have the answer to this question: Do two-thirds of the states want a convention?

(a brief note: I do recognize my error on the proportion required to call a convention, and hereby correct the error)

All in all, I think this is a case of why people should drink deeply or not at all when it comes to the law. The constitution is definitive as the last word, but there is more to law than that. There are likely any number of decisions, legal traditions and other important points that are crucial to the interpretation of the law.

I mean, it’s sort of like the problem with originalists: our nation is not the same as it was at its foundations, and what’s more, it was not meant to be. We were given a metastable government precisely because the founding fathers didn’t trust their judgment and wisdom as holy writ. We can’t simply run back to our daddies every time there’s a new point of law to consider. We have to consider the constitution in terms of situations that the Founding Fathers never could have imagined. I think at some point we have to think and decide for ourselves.

There may come a point where we need a new constitutional convention. It should not be a half-hearted or unnecessarily drawn-out affair.

Posted by: Stephen Daugherty at January 7, 2007 11:38 PM
Comment #201963

Stephen D.,

It’s an interesting issue. Since Congress has established no time limitation on Constitutional Convention requests, if the required number of states did request a convention for a specific amendment even after decades, what would Congress do? The time limits for ratification were written into the amendments (or preambles of the amendments) themselves. Would Congress attempt to retroactively nullify some of these requests based on a time limit established after the fact?

At any rate, the power of this approach to amendment the Constitution seems to lie in the threat of its use. The 17th Amendment, for example, was proposed by Congress in apparent fear that the states would succeed in calling for a Constitutional Convention.

If the interpretation I am assuming is correct (that is, states when calling for a Constitutional Convention must have a specific amendment in mind), I wonder if this National Convention has the power to propose other amendments not previously specified.

Regardless, it doesn’t appear that we have to fear capricious amendments. Setting aside the original Convention that ratified the Constitution, there have been only two state calls in our entire history that have come close to getting the required two-thirds. It’s far, far easier for Congress to propose amendments.

Tangentially. …

I find this stuff fascinating and wonder why I never really looking into it before. The last amendment to the Constitution was proposed in 1789! It was finally ratified after more than 200 years in 1992. Three proposed amendments from the 19th Century and one from the early 20th Century are still awaiting ratification. In general, though, in more modern times, Congress has written in time limits for ratification.

Posted by: Trent at January 8, 2007 12:31 AM
Comment #201966

A convention may be a good thing and may increase voter eduction some, but that isn’t required to stop government corruption.

All that is really needed is for voters to stop rewarding irresponsible incumbent politicians by repeatedly re-electing them.

However, an educated electorate is needed before voters finally (if ever) decide to stop re-electing bought-and-paid-for, irresponsible incumbent politicians. In a voting nation, an educated electorate is paramount, and the voters will get their education one way or another. Sooner would be better than later.

Posted by: d.a.n at January 8, 2007 12:48 AM
Comment #201968

d.a.n.,

What, no charts? ;)

Posted by: Trent at January 8, 2007 12:53 AM
Comment #201997

From the article author:

First, I love all this discussion on my first article on Watchblog!!!!

However, I keep detecting a trend among comments: namely that people refuse to read the exact words in Article V and accept what OUR constitution explicitly says. It does NOT give Congress authority to change what Article V itself says. Why are so many of you so keen on giving Congress power that the constitution does not give it? If you want Congress to have such powers to limit Article V conventions, then what you should be favoring is our nation’s FIRST Article V convention that would consider possible changes to Article V as a proposal for an amendment!!!! Why are so many Americans so fearful of an Article V convention???? There is no sound basis for this fear. WE HAVE NEVER HAD ONE!!! Yet, there a zillion reasons why sensible people should fear continuation of our current political/government system that is obviously corrupted by money. The safeguard on a convention is the three-quarters of the states necessary for ratification of ANY amendment PROPOSAL resulting from an Article V convention. And for god’s sake start questioning so called “facts” you find on various websites, including Widipedia. You are letting yourselves be victimized by considerable propaganda and misinformation accumulated over decades that only works to maintain the political status quo. WAKE UP AND READ THE CONSTITUTION’S ARTICLE V — stop thinking that the courts and congress will really respect EXACTLY what the Constitution says - BETTER YET, START THINKING ABOUT ALL THE IMPLICATIONS OF WHAT HAS HAPPENED FOR ARTICLE V — OUTRIGHT FAILURE TO OBEY IT — AND THE COURTS’ REFUSAL TO MAKE CONGRESS OBEY IT — ON ALL OF OUR SACRED CONSTITUTIONAL PROTECTIONS AND RIGHTS!!!!

Posted by: Joel S. Hirschhorn at January 8, 2007 10:09 AM
Comment #202001

Joel,

No need to scream. We are questioning everything, including the assertions in your article. Instead of screaming, work on your case. It’ll be picked at, but if it’s fundamentally sound, you’ll get some people agreeing with you.

Here’s a place to start. Article V says

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…

Now it says that when both two-thirds of both houses propose amendments, then they go to the states for ratifification. Now, unless you think the intent is for Congress to propose multiple amendments in one go, the intent seems to be that if Congress wants an amendment, it passes it, and sends it to states. Now look at the next bit. The other method is for two-thirds of the states to request a Constitutional Convention for the purposes of proposing amendments. Yes, the plural is used, but in context it appears we are talking about single amendments. (Otherwise we have to accept Congress itself proposing multiple amendments in one go.) That’s my interpretation, and I never said it was sancrosanct. I gather you disagree with it, so make your case.

At any rate, you seem new to Watchblog. A bit of advice: hysteria won’t get you very far.

Posted by: Trent at January 8, 2007 10:31 AM
Comment #202022

Joel S. Hirschhorn,

I agree with the point you make.
However, that is not the root of our many pressing problems.
It is just another of countless things we chip away at in desparation to find a solution for an increasingly corrupt, dysfunctional, and oppressive government.

A more fundamental change is needed, but it will ONLY occur when voters are ready for it. They aren’t ready yet, because they have not yet felt the consequences of their apathy, complacency, selfishness, dependency, sense of entitlement, irresponsibility, and (in general) laziness.

The 2008 elections may bring us a little closer, since our Do-Nothing Congress is likely to motivate more unhappy voters to start looking closer and closer at their corrupt, FOR-SALE government, and how it increasingly threatens them, and finally realizing that it is ultimately up to the voters to change it (provided the voters don’t mess around for too long and lose the right to vote or get an accurate vote-count).

Unfortunately, at the moment, too few voters care or are ignorant of the corruption within government. However, there is a built-in mechanism (of sorts) that will eventually motivate enough voters to wake-up. It is called pain and misery. Unfortunately, that’s the way it works.
2.000 steps forward, and 1.999 steps backward.
It is painfully slow, but voters will get their education one way or another. The sooner the better. Some pain and misery is already in the pipe-line due to a number of fiscal problems growing in number and severity.

Posted by: d.a.n at January 8, 2007 12:40 PM
Comment #202044


Joel:

The legislature of Ohio has just passed a call for a Constitutional convention to consider amendments to the Constitution. The state does not have a specific amendment that it want’s passed, we just want a convention. All the states can name delagates and the delegates can propose as many amendments as they want to. The convention will debate and vote on all the proposed amendments.

If Ohio can pass such a request as worded, thirty three states must agree with Ohio. I have seen no evidence that, in all of the 567 calls made by state legislatures, 34 states agreed to any of the calls. If you have evidence that this has happened, please produce it. Otherwise, I cannot see how Congress has violated article five of the Constitution. If at anytime in our history, 34 states had ratified even one of those 567 calls, Congress could not prevent a constitutional convention even if it wanted to.

Posted by: jlw at January 8, 2007 2:48 PM
Comment #202050

jlw,

That’s interesting. When I try to find information on this issue, I keep enountering claims (from sites that want a Constitutional Convention) that there are 32 standing calls, and only two more are needed (there is some issue with a handful of states attempting to rescind their calls, as well).

Joel,

If you have more information on these 567 calls, please provide it. Why would those who want a Constitutional Convention not use your number?

Btw, Joel, I do not fear a Constitutional Convention. As I’ve said elsewhere, the necessary ratification by three-fourths of the states keeps the bar high. What I want is good argumentation! Your article raised more questions than answers. If you have more context, please provide it, or provide links.

Posted by: Trent at January 8, 2007 3:06 PM
Comment #202056


Trent: I sited similar evidence that you mention earlier. I haven’t seen any evidence that supports the argument that Congress is violating article V. It seems to me that if article V is supposed to work as Joel suggests, it would lead to a permanent Constitutional convention and a forth branch of the government.

Posted by: jlw at January 8, 2007 3:29 PM
Comment #202082

Trent-
I think we should take as our model the original constitutional convention, which is to say that any amendment the convention cares to create, including a complete overhaul, is fair game.

I believe the specificity of the call is merely a Congressional Custom, and as there is no stare decisis requirement on Congress, they can (and should, in my opinion) consider a convention without reference to any specificity.

Joel-
Welcome to the site.

Explicitness is not a strong point in the constitution. In places, it does make explicit points, but in others, such as this section, it does not.

Congress and the courts are therefore not only free to define what the clause means, but must do it. We’re not dealing with the Napoleonic Code here. Interpretation is part of the system.

For my part, I have to say the facts are thin on the ground here, in no small part because we’ve never had a constitutional convention, even around the time of the Civil War. We’ve gotten by on good old fashioned amending for years.

As for being wary about an Article V Convention? Well, you have to remember what a radical change the original came to be. It was supposed to be a revision of the Articles of Confederation, not a replacement. Calling a constitutional convention leaves the door open to much more radical changes than singular amendments would allow.

As for your response, you’re effectively asking us to wake up and figure out that you are right. Nice try, but like the rest of America, we have to see more of the product before we buy it. First we have to agree there’s a violation. Then we have to agree that the man who’s case you cite is right. There’s good information that says that the guy didn’t have the standing to bring the case, and that he badly misinterpreted the law. In that case, as with all such misinterpretations, wishing he’s right or assuming he is doesn’t make him so.

Neither does the use of capitals.

In the end, the best persuasion is that done with humility towards the audience’s decision to believe or not believe. If you think you can force people to believe you, you’ll always come out wrong.

Posted by: Stephen Daugherty at January 8, 2007 6:01 PM
Comment #202094

Stephen, but if and when, the people decide that the system is beyond repair, the only option left them besides violent revolution and overthrow, is this very Article V. It is dangerous, literally, to discount this potentially, and extremely important provision in the Constitution.

Posted by: David R. Remer at January 8, 2007 6:34 PM
Comment #202097

Stephen D.,

Yeah, I think you’re right. A Convention once called can propose what it wants. I’ve also swinging back to the idea that calling for a Convention for specific amendments is not necessarily required.

That leaves the question of those 576 state calls Joel talked about. I haven’t been able to find any information. It also leaves us with the question of time limits. As Joel says, no Constitutional guidance there, but the Courts in general have allowed Congress to set time lines on other amendment issues — though, in those cases, those time limits were written into the amendments or the preambles to the amendments themselves. Presumably there would be no way for Congress to use a similar device in the case of state calls.

Interesting stuff.

Posted by: Trent at January 8, 2007 6:46 PM
Comment #202110

David R. Remer-
I recognize the necessity of it, but it should not be taken lightly, nor should it be initiated except by the strictest of standards.

We should approach the convention the way we would a war: with respect for the unintended consequences that can come of it. We should also acknowledge that the founding fathers respected this potential for things to go in an unanticipated direction. That is why they made the requirements for new amendments inherently conservative, rather than take the approach that our home state has, where the governor can’t sneeze without gaining an amendment first.

I would not discount this provision, but I’d careful that it only be employed after other means have been exhausted, and after the support of the country in general has been brought behind it. This is no easy task, committing to a general revision of one’s national charter, which is what a consitutional convention, and if we don’t watch out, the cure could become worse than the disease. Caution, and a scrupulous attention to the will of the people is well-advised. Those who would take this as a short cut are no wiser than those who decided that Iraq was a short-cut to peace in the Middle East.

It may one day fall to us to have to do this. We have to recall then the complexity that went into the original, and the spirit of wisdom that went into it. We also have to recall the imperfections of the original document, and the necessity for revision that years of our history and the change they brought required. We should write with the interests of the far future in mind, but the humility to understand that we will likely be as ignorant of the course of the next two centuries as our forefathers were of the subsequent ones to their own.

Posted by: Stephen Daugherty at January 8, 2007 8:27 PM
Comment #202112

Stephen D. and David R.,

It’s certainly easy to see how a Constitutional Convention could be revolutionary. Of course, each specific amendment proposed would need ratification by three-fourths of the states. I don’t think we should discount the immensity of that hurdle.

So many things to consider. There are no provisions for ending the Convention, so we could theoretically have a permanent Convention, proposing amendments willy nilly. There are no provisions for how delegates to this Convention are selected, though perhaps precedents in election law would prevail. At least one former Supreme Court justice has opined that this Convention would have carte blanche to establish its own rules and procedures.

If the states that did not call for a Convention boycot it, we presumably could have delegates from just 34 states proposing amendments, though, in that case, getting ratification by three-fourths of the states would seem difficult, to say the least.

As a practical matter, it seems much easier to use the usual method to amend the Constitution. I imagine many states would fear the potentially open-ended nature of the Conventions.

Btw, I’m a native Texan, too. Born in Denton. Now, however, I live in Tennessee, another Red State.

Posted by: Trent at January 8, 2007 8:58 PM
Comment #202187

Here is a link to a web page that has several tables of data on state applications for an Article V convention.

http://article5.org/Amendment%20Convention%20Subject%20Matter%20Information%20Page.htm

Posted by: Joel S. Hirschhorn at January 9, 2007 4:08 PM
Comment #202236

Thanks, Joel.

I’m still trying to puzzle this out.

I’ve found an analyses of the amendment process at the Government Printing Office. It doesn’t say much about Constitutional Conventions except to list a series of unanswered questions, but it does at least contain bibliographic information about other sources that deal with the subject.

http://www.gpoaccess.gov/constitution/pdf/con008.pdf

Posted by: Trent at January 9, 2007 9:39 PM
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