Third Party & Independents Archives

October 14, 2007

Constitutional Convention Begins October 19.

Believe it or not, in a barely covered announcement made on October 5, which I just ran across, a Constitutional Convention will commence on October 19. Supreme Court Justice Samuel Alito among others will preside. 23 proposed amendments and changes to the U.S. Constitution are on the agenda for debate.

It is an educational mock Constitutional Convention put together by University of Virginia professor Larry Sabato, author of the book, A More Perfect Constitution. A growing number of able persons are debating, contemplating, and pushing for our next Constitutional Convention. Many say it is inevitable and necessary. Fewer say we are ready for it in this generation. Some arguments follow, much of which I was unaware of before this bit of research.

The blogs are full of comments to discussions of a Constitutional Convention which charge that it would result in a runaway process with all manner of horrible changes wrought upon our nation and people. While respecting their concerns, which were also mine prior to being introduced to FOAVC this Summer, such comments are imparted from a state of ignorance. The U.S. has witnessed a runaway Convention before, in which, the delegates went way beyond their mandate and instructions in the drafting of a new Constitution.

But, the ratification process required to adopt what the delegates proposed, caused fierce fighting within some of the states before ratification could be achieved. It was our first Constitutional Convention and it achieved its goal to create a more perfect union through a constitutional democratic republic. One which has survived enormous challenges for over 2 centuries.

A convention held in modern times could not possibly achieve any results which were not bi-partisan. It would only take 13 state's delegates to nullify the Convention's product. Given that there are more red or blue states than the 13 required to reject ratification, the delegates could run as wild and radical as they wish in redrafting our Constitution, but, without consensus between red and blue state delegates, the runaway proposals would not alter a single letter of our current Constitution. Fears of gratuitous overreach are unfounded. The greater concern is that so much time and effort be spent with no changes to show to for it. The consequences of no Convention or, one that produces no change, are negative for a growing number of Americans assessing these options.

But if our current Constitution has survived for over 2 centuries, why should anyone attempt to change it now? It is a valid and important question with incredibly important consequences. While there are many, many arguments to support a call for an Article V Convention, there are 3 which are chief among them, Executive Power which has grown entirely out of the balances and checks devised by our founders, the partisanship of judicial appointments, and the incredible corruption of the political process by both special interest money and the 2 political parties.

The White House has taken unto its own offices the war powers specified in the Constitution as belonging to the Congress. Over many presidents this shift has occurred. And America is now faced with the very real potential of a president using executive secrecy and expanded powers to attack other nations like China, Russia, Cuba, Iran, or Pakistan without congressional notification, let alone Congressional approval, which could engage the U.S. in a conflict whose retaliation posed grave risks to the U.S. homeland, compelling the Congress to underwrite the war, even though the Congress would never have approved the attacks, if the proposition had been posed to them.

The branch of government responsible for, and charged with the duty to insure the checks and balances and principles of the U.S. Constitution, has become partisan; an outcome not anticipated by the founding fathers, and which is producing partisan oriented review, instead of impartial judicial review. And the Supreme Court as a result, has failed, time and again, to preserve the checks and balances between the original 3 equal branches of government designed by our founding fathers, many of whom were well versed in the writings of Charles Montesquieu,, the architect of the modern concept of separation of powers.

We are witnessing at this very moment, the most monumental neglect of America's challenges and needs going forward as a result of the two party deadlock in the Congress. The two major political parties are now so consumed by the prospects of home district reelection, that their ability to act decisively, effectively, and bi-partisanly is virtually non-existent for crises like illegal immigration, entitlement spending, the AMT taxes, and the growing national debt. Campaign financing has resulted in legislation that favors donor special interests instead of solving the nation's and the people's challenges. In fact, very often, the special interest influence results in legislation that creates more problems than it solves, like the Medicare Rx drug plan, which increases national debt threatening all safety net programs, and created non-competitive inflationary costs in the health care system.

Larry Sabato's book noted above, addresses these and other issues of serious concern for our nation. And the mock Convention will address many of these concerns as well. It is my fervent hope that the student delegates to the mock convention are aired on C-Span. I believe these delegates may display far more knowledge of, and insight into our Constitution than most of our representatives display in government today, and certainly more than most voters. Mitt Romney in last week' s debate, when asked the Constitutional question of whether he would consult with Congress before attacking Iran said he would get the attorneys to tell him what to do. A sign that our politicians having held office for years, do not know, or understand, the Constitution that is supposed to govern their actions. Yet the people elect them to the the highest offices of government.

Issues such as campaign finance reform, executive power overreach, war powers resting in the Executive Branch instead of the Congress as our Constitution specifies, can no longer be addressed by the 2 party political competition which, now passes for Constitutional process in name only. Political parties, modern technology, speed of information and action, universal suffrage combined with even less knowledge of civics by our voting citizenry than at any other time in our history, have culminated in serious imbalances of power and accountability. Combined, they constitute a process which is broken. It is broken in large part because precedent in law and action have now cemented departures from the original constitution into acceptance by our courts, politicians, and agencies of government, in ways that now make a far more imperfect union.

One of the incredibly important things our Constitution did was to define, quite specifically, government process. But, it did so for the 1780's, not the 21st century. Political parties were not even in place when our Constitution was drafted. Hence, the drafters could not anticipate the consequences of them on the process they designed. Many of our founders, in one fashion or another, agreed with Jefferson, Madison, and Washington as Sabato recites:

In a letter to James Madison in 1789, Jefferson wrote these wise words: "[N]o society can make a perpetual constitution . . . .The earth belongs always to the living generation . . . .Every constitution . . . naturally expires at the end of 19 years." Madison agreed, warning that their generation should be prevented "from imposing unjust or unnecessary burdens" on posterity.

George Washington was blunt when he wrote in 1797: "The warmest friends . . . the Constitution has, do not contend that it is free from imperfections . . . .I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us."

Eric Lane and Michael Oreskes, authors of "The Genius of America" maintain that the U.S. Constitution should be a document that inspires change as the people and the nation change over time. Eric Lane is a law professor at Hofstra University School of Law. He was formerly a director of the New York City Charter Revision Commission, New York State Commission on Constitutional Revision and counsel to Senate Democrats in New York. Michael Oreskes is the executive editor of the International Herald Tribune. Formerly he was a political correspondent, Washington bureau chief and deputy managing editor at the New York Times.

Together with Larry Sabato, Eric Lane and Michael Oreskes discussed their books and the Constitution in a program aired on C-Span today, conducted at the National Constitution Center in Philadelphia. In opposition to a Constitutional Convention would be a host of small groups claiming to know what the original intent of our founding fathers were. Libertarians make this claim frequently. Less well known and wide ranging are Code Pink on the left, and Citizens for Constitutional Government on the right. But, the simple logical truth of the matter is, no one can possibly know what the founding fathers would have intended for the Constitution if it were being drafted today, with the advent of campaign financing, threats of attack by foreign terrorists without a national identification or cohesion, the digital information age, electronic surveillance, and international law and the U.N.

In the quote by Jefferson above, the 19 years refers to the average span of a generation in their day. Today, a generation is more like 30 years. Hence, Jefferson would today call for a Constitutional Convention to be held every 30 years whether changes were agreed upon or not, as part of the process of keeping the process alive and invigorated for each generation. There is much wisdom in this line of reasoning.

Posted by David R. Remer at October 14, 2007 08:56 AM
Comments
Comment #236102

Wow, thanks for the heads up. This is just the kind of thing C-Span loves, so I’d say there is a good chance it’ll cover it.

I can’t find anything to quibble about in your article. I share your sentiments. Good article.

Posted by: Gerrold at October 14, 2007 09:08 PM
Comment #236104

I hope all those who see the wisdom and intelligence of your analysis visit www.foavc.org and become a member; we need more public support to get the nation’s first Article V convention. More people need to understand why many groups on the political left and right oppose a convention: they want to preserve their power to maintain the corruption of our current dysfunctional political system.

Posted by: Joel S. Hirschhorn at October 14, 2007 10:00 PM
Comment #236105

David R. Remer,

Thank you for discussing this.

This will raise awareness.

Afterall, it is OUR Constitution.

If we do not avail ourselves of this method provided by our forefathers, we may lose it.

How much longer can Congress ignore the Constitution? There are already 567 applications by all 50 state legislatures. The two-thirds requirement has already been met (4 times even on the same-subject). On average, the states have submitted 11.34 amendment requests per state. There is something very fundamentally wrong.

Article V is one of the best kept secrets in America.

Posted by: d.a.n at October 14, 2007 10:32 PM
Comment #236107
Gerrold wrote: This is just the kind of thing C-Span loves, so I’d say there is a good chance it’ll cover it.
I hope so. Article V is not well know. And Congress wants to keep it that way. Posted by: d.a.n at October 14, 2007 10:34 PM
Comment #236109

I can understand the impulse towards a convention, but do not believe it will cure our nations ills any more than any other political process. If people are ignorant, it will not necessarily make them more knowledgeable, nor lead them to seek knowledge. If people are partisan, it will not necessarily lead them to transcend their party loyalties. It could in fact lead them to intensify them.

If people are imperfect before the convention, greedy, self-centered, and contentious, the convention cannot be predictably counted up on to make them better people.

Nor do amendments thought up in all good intention and passed by the American people necessarily have a good effect. Prohibition was written with the best of intentions, and it ended up such a failure that it became the one and only amendment in our history that we ever wrote an amendment to repeal.

Nor do all people see this in the tradition of open participatory Democracy. Many see it as a way to short circuit the system, to use the passions of the moment to write into the law of the land what they can’t force past the supreme court or the American people. Remember, it’s legislatures that vote on these things, which allows the uncertainty of political manuevering to intervene between the perfect relation between the will of the people and the acts of the officials in charge.

Some people see such a convention as a means to give power back to the people, but neglect the fact that it also can be a means to take it back from the people, or hand more powers to the government.

These are times of great strain in our society, where many feel times are desperate. Desperate people grab for power, or give it away. I would ask those who would grasp for a tool like a Constitutional convention to understand that whatever happens, this event will be profound, and profoundly uncertain in it’s results.

There’s a reason folks have chosen to do single amendments; it’s much easier to adjust to such change one amendment at a time.

What do I suggest? First, see what we can do under the constitution as it is, and do this seriously. As much as we might not like the shape of the current constitution, nobody doubts its current authority, beyond the ZOG-fearing denizens of survivalist militias. Second, we see whether we can get single amendments up for ballot, and don’t be afraid to play political hardball to get it there.

Then, and only then, after all else has failed, do we calmly and collectively call a constitutional convention. This cannot be simply forced on Americans, or snuck up on them. The single quickest way to get people afraid and subsequently angry and uncooperative, is to mess around with what they see as their freedoms.

At the end of the day, we should not presuppose what people’s responses will be to the event, or what the results and consequences will be. Care, not desperation, foresight, not fearfulness should guide us. We should not deny the need for such a convention when our problems merit it, but we should not underestimate the danger in taking the potential negative outcomes lightly.

Posted by: Stephen Daugherty at October 14, 2007 10:43 PM
Comment #236111

Dear David,

Thank you for the spreading the news about Article V of the US Constitution, providing for two methods for amending our Supreme Law — Congress or the amendatory convention.

You list three chief arguments for the calling of an Article V Convention:

1. Executive Power which has grown entirely out of the balances and checks devised by our founders,

2. Partisanship of judicial appointments,

3. Incredible corruption of the political process by both special interest money and the 2 political parties.

I would humbly offer a fourth and possibly more crucial argument for the absolute necessity for our nation’s first Article V Convention, and that is securing and protecting democracy’s most sacrosanct institution: the vote.

The cornerstone of our republic.

All the political wrangling and policy punditry that we spend our time, heart and soul upon becomes rather academic if we cannot tell who is voting for whom – or who is voting for what.

Today our electoral system is under attack.

It’s under attack by the fact that the proprietary source code that instructs the voting machines as to how to count the vote is being held in private hands.

Unconscionable.

More than 1/3 of all votes cast in our nation are made on touch screen machines driven by proprietary source code – 90% of all votes cast are counted by software that’s unverifiable.

There are thousands of different methods for counting the vote in America providing for a very diverse and unequal playing field, and when voting for a very singular federal office like the Presidency, having electoral systems so divergent from any inkling of a national standard violates equal protection under the law.

The Carter Center who monitors and verifies electoral results all around the world, would not even touch the US electoral system with a ten foot pole due to the vulnerabilities present from such a convoluted, unverifiable and decrepit process.

The 28th Amendment to the Constitution of the United States should coalesce all the different methods of counting our vote into one national standard – and guarantee the independent verification of ballot results, conducted outside of private control.

The corrupting influence of big money in politics and these electoral vulnerabilities shows that today our American voting experience has been essentially privatized — don’t you think our vote should be a public process controlled by the people?

Of course that’s the only way, that’s the American way.

Sincerely,

Byron DeLear

Please visit FOAVC.ORG and join the call!


Posted by: Byron DeLear at October 14, 2007 11:43 PM
Comment #236113
Byron DeLear wrote: You list three chief arguments for the calling of an Article V Convention:

1. Executive Power which has grown entirely out of the balances and checks devised by our founders,

2. Partisanship of judicial appointments,

3. Incredible corruption of the political process by both special interest money and the 2 political parties.

Byron, You hit that nail on the head.

And I think a growing number of Americans are catching onto this best kept secret in America.

As you can see, main party loyalists will resist it. They are for the status quo.

Your website states:

The status quo has got to go in Washington.

Yes, the status quo is the foe.

They are getting tired of Do-Nothing Congress doing … uhhhhmmmmm … pretty much nothing … if you don’t count they gave themselves their 9th raise in 10 years.

I think voters are getting more and more fed up, as they see these regressive systems pushing them down farther and farther.

Posted by: d.a.n at October 15, 2007 12:26 AM
Comment #236114

I find it interesting that Justice Samual Alito will be leading this mock constitutional convention. Less than a year ago, this same justice, along with the rest of the Supreme Court, had no problem denying cert to a lawsuit designed specifically to compel Congress to obey the law of the Constitution and call an Article V Convention as required by the Constitution. In other words to make it actually happen for real instead of just having a “mock” convention.

The record is clear. Congress has refused to call a convention. The states have applied 567 times. All 50 states have applied for a convention call and Congress has refused to obey the Constitution. The Supreme Court it seems has no problem with this as they approved this veto by Congress making it in fact actual government policy even though in the suit, the government acknowledged they were in fact mandated to call and that refuse to do so was in fact, a violation of federal criminal law.

I wonder if anyone will ask the justice at this “mock” convention why he and his fellow justices allowed this ruling to happen. Most likely he will reply it was a question of standing meaning the court holds its doctrines above that of the law of the Constitution. It’s fine to have a “mock” convention but the Supreme Court decision was real and official and at our FOAVC website you can read emails from members of Congress and others who clearly believe they have no obligation whatsoever to obey the law of the Constitution.

Seeing that a justice of the Supreme Court is now leading a “mock” convention and seeing how his court ruled on the real issue of a real convention being held and seeing that the court approved that Congress could simply ignore the real language in the law of the real Constitution, I have to wonder. Is the justice there for reasons of hypocracy or for reasons of guilt?

Posted by: Bill Walker at October 15, 2007 12:38 AM
Comment #236125

David,

In order for any of this to be remotely relevent, Americans must step up to the plate in greater numbers than they have in the last few decades.
We have been electing the “lesser of two evils” for far too long.
Parents haven’t been instilling an interest to learn in their children for far too long.

Civics lessons or even the Constitution itself are meaningless if those that are governed by it can’t read and understand it’s meaning, and that’s assuming that they even care.

Unless we, the electorate, can turn out in greater numbers to take hold of our own country, all of this will come to naught.

Posted by: Rocky at October 15, 2007 09:33 AM
Comment #236128

Byron De Lear-
First, we should not assume that people who ignore one part of the constitution would pay attention to other, newer provisions in it. Politicians that are corrupt weasels before the convention would probably remain such during and after the proceedings.

Second, I don’t see much reason to believe that this couldn’t be done by statute, rather than an amendment.

If we’re concerned about politicians not putting our interests at heart, giving them a Constitutional Convention to play around with would not necessarily change things. The corrupt GOP tried several times to get one going so they could force their agenda on folks.

The real mechanisms for change are already available to us, and have already worked. While I agree that the situation with voting machines is in dire need of being addressed, we should take note of the very unfavorable outcome of the last election for the Republicans.

The best way to get the law working on our side is to put constant pressure on our law makers. Make them fear for their job security.

Bill Walker-
The states have applied well over five hundred times, but all at once, together?

Under an accumulation standard, A few votes added on top of an insufficient push years in the past might be sufficient to take an entire nation of unwilling states into a constitutional convention they don’t want.

I can hardly believe that the Founding Fathers wanted a system so accidental. In every other place, the intent of these high proportions was to ensure that the bedrock foundation of our constitution would not be changed at the whim of bare, temporary majorities, much less vocal minorities, that the law of the land would be stable, and only changed when an overwhelming consensus of states and citizens wanted it.

Your standard would bring change whether or not this backing was there, making the will of the people arbitrary to the calling of a convention, much less the will of the states.

If there is one lesson we should draw from the last six years is that this nation will not have peace if a few seek to impose power over those they disagree with by seeking out power in disregard for the rules and regulations that keep those efforts within reasonable limits.

The founders intended only a real, substantial majority would be able to undo what they had done. Moreover, they intend this to be a power of the States, which is probably where you ran into problems, since you can’t really speak for them.

I would drop the speculation over whether people are hypocrites or just being troubled by their conscience. I don’t think most of your opponents actually believe what you’re pushing is correct, so their actions are likely consistent with their worldview, and moral in their eyes. You can’t simply assume these people think like you, but are being held back by some character defect.

Posted by: Stephen Daugherty at October 15, 2007 10:07 AM
Comment #236129

Stephen,

As I wrote the last time this topic came up, I can’t find any support for anything other than an accumulation standard under Article V. It has certainly been used in the ratification of several, if not all (depending on how you define accumulation), constitutional ammendments (the process of which is outlined in Article V). While I agree with you that a Constitutional Convention would not necessarily have favorable results, I’m not sure that there is a Constitutional argument for denying it.

I believe the best course of action at this point would be to support a constitutional ammendment giving full force to your views that the call for such a Convention should be done by roll-call vote in the House. I would go further and state that the House members should be bound (similarly to electors) to vote as their constituents direct them based on the results of the most recent statewide election that included the question of whether an Article V convention should be held. The ammendment should further stipulate that the question should be placed on the ballot every two years concurrent with House Elections.

Then, we could all have this fantastic argument every two years of whether it is time to ammend the Constitution.

Posted by: Rob at October 15, 2007 11:13 AM
Comment #236133

Minus his anti-anything-Democrat musings, Stephen is correct above.

Before we flush our entire system in hopes for a better one, one devised by the same corrupt policticians we currently elect to lead us, maybe we should actually try to use the system we have. Although I agree with Washington when he said, “I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us,” I do think he and his contemporaries came up with a pretty good, workable document that, if followed, actually provides for a pretty darn buttoned-up system of government.

It’s not like a convention, if one was called for real, would draw equally amongst the various political philosophies… no, just the opposite. The two parties would likely use the occasion to actually write into any governing document a system which not only favors a duopoly, but actually entrenches one legally.

All of the guaranteed freedoms we enjoy (?) in our current system would potentially be fair game if we decided a new system were needed. Freedom of speech could be defined to mean whatever the framers of this new document would intend, if defined at all… anyone want Karl Rove in on this?

No, a new convention is certainly not needed. We have a system that works very well, if people would actually hold their government accountable. Any new system would still have the same, apathetic populace to govern, and the same power-hungry politicians running it… the only difference would be that it would be those power-hungry politicians drafting it, too. That is not a recipe I want to try.

Posted by: Doug Langworthy at October 15, 2007 11:32 AM
Comment #236137

Doug and others,

The Constitutional Convention is a system we have. It’s right there in the Constitution. Nothing in the language of Article V says it should be considered a tool of last resort. Nothing in the language supports the accumulated standard. Indeed the language suggests otherwise: “on the Application of the Legislatures of two thirds of the several States [the Congress] shall call a Convention for proposing Amendments.” Note the plural “amendments.” Note the “shall.” Two-thirds must call for a convention, not call for a convention to propose any particular amendment.

Indeed, I fail to see cause for handwringing. There is nothing accidental about the process. Any amendment proposed by the Convention must be ratified by three-fourths of the states. The only difference is that state delegates and not Congress initially propose the amendment. How that will lead to a radical undermining of the Constitution is difficult to see, and claims otherwise need support.

Some raise the specter of the first Constitutional Convention which proposed our current Constitution. That’s a red herring, scare mongering. Under Article V each particular amendment must be ratified by the same process that Congressionally proposed amendments must be ratified. The very strong obstacles to new amendments are not undermined by an Article V convention.

Here’s Article V, read it for yourself:

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.
Posted by: Gerrold at October 15, 2007 12:35 PM
Comment #236138

We already are dealing with unconstitutional gun grabbers, unconstitutional out of control government spending on all kinds of unconstitutional and hardly unaccountable “entitlement” programs continually pushed on the public by those who favor a “European Model” Socialist unconstitutional form of government. We also are dealing with the unconstitutional McCain-Feingold so-called “Campaign Finance Reform” measure, which is an out and out assault on the First Amendment…the unconstitional Kelo v. New London case which REEKS of eminent domain abuse, and don’t forget just over the horizon, the unconstitutional “Fairness Doctrine”….yet another full frontal assault on the very Freedom of Speech guaranteed in the U.S. Constitution…..oh yeah, lest we forget the “thought police” and their unconstitional “hate speech” laws, some people actually think the Constitution allows for people to silence other people because they are “Offended”….this is a TOTAL travesty, my right to free speech and my right to offend anybody trumps their right “not to be offended…and vice-versa.

Is there any wonder I’ve become more and more of a Libertarian as the years go by…..surrounded by nanny staters, “people for a perfect world”, control freaks who continually get elected to office in order to continue passing more and more laws, rules, regulations, restriction, mandates, fees, fines, taxes….ALL AT THE EXPENSE OF INDIVIDUAL LIBERTY! No, I, myself will continue to struggle for a more Libertarian form of governance.

Posted by: silversurfer at October 15, 2007 12:44 PM
Comment #236139

Gerrold… yeah, I get it. I understand the Article V language… I just do not think it necessary.

All arguments about the product of such a convention aside, our government works outside of the Constitution now… how will drafting a new document change that? Our current system has adequate separation of powers if the people would hold officials accountable to the very document from which they claim to govern.

We have a great system now… if only it were followed.

Posted by: Doug Langworthy at October 15, 2007 12:44 PM
Comment #236140

FREE - 1. a) not under the control of some other person or some arbitrary power; able to act or think without compulsion or arbitrary restriction; having liberty; independent. 2. a) having, or existing under a government that does not impose arbitrary restrictions on the right to speak, assemble, petition, vote, etc.; having civil and political liberty. b) not under control of a foreign government. 3. at liberty; allowed[free to leave at any time]. 4. not restricted by anything except its own limitations or nature[free will].

I believe in freedom, which also includes free to succeed and free to fail. Which also fully realizes that, with a free society, comes the good with the bad. There shouldn’t be some kind of “guaranteed result” only “guaranteed opportunity”. With freedom comes the “good, the bad, and the ugly”. That’s a GENUINE Libertarian approach to governance…that’s the direction I am active towards. I do not, repeat do not approve of sacrificing individual freedoms for “the common good”…that is socialism. I prefer the Libertarian freedom of “sink or swim”…handle your business and keep most of what’s yours,(atruism should be just that…on a personal, voluteer basis….socialism and the current “war on poverty” is FORCED ALTRUISM….by the way, over forty years the “war on poverty” has cost taxpayers $7,000,000,000,000 - that’s SEVEN TRILLION DOLLARS. What is the “exit strategy” for this war? What is the “exit strategy” for the “war on poverty”? 7 Trillion dollars and counting and escalating for entitlement programs…many of them UNCONSTITUTIONAL). I will be continuing to struggle for Libertarian ideals, whether they’re “popular” or not, whether they’re “mean-spirited” or not, whether nanny staters like it or not!

Posted by: silversurfer at October 15, 2007 01:09 PM
Comment #236142

I’m all for a new Constitution. Just as long as it caters to my beliefs, needs, and prejudices. :)
While I’m only joking unfortunately there are a whole heap of folks out there that really have that attitude. And you can be sure that if this country did set out to write a new Constitution that these folks will be very vocal about their special wants. Giving in to these types would definitely have to be guarded against.

While I agree that there are some changes needed to our present Constitution I have some reservations about writing a whole new one.

1.How can we be sure it will address the future and best interest of this country and it’s citizens?

2.How can we be sure our current rights won’t taken away?

3.Who will be writing it?

(a)The current bunch we have in DC? The goes the ball game.

(b)Folks elected from each state? Better make sure we ban anyone from any political party.

(c)Lawyers? No one but them would be able to understand it.

(d)Special interest? Heaven help us.

(e)Common folks like us? How many of us really understand complexities of government enough to come up with a workable Constitution?
But then that might be just what we need. Folks that don’t understand the complexities of government. They just might make government workable again.

Posted by: Ron Brown at October 15, 2007 01:24 PM
Comment #236143

“But then that might be just what we need. Folks that don’t understand the complexities of government. They just might make government workable again.”

Nice one… just thought it bore repeating…

Posted by: Doug Langworthy at October 15, 2007 01:54 PM
Comment #236144


David R: Where is the list of the 23 proposed amendments and changes? Do we have to buy the book to find out? Are we going to be able to watch this convention or are we going to be dependent on the spin of the left and the right? I would be extremely suspicious of any convention resided over by Justice Alito. Why not Justice Alito and Justice Stevens? Wost people believe that the Supreme Court, being part of the government, is a major contributor to the problems that We The People have in truely being represented by our government. After all, the major obstacle to true representative government is the power manifested in wealth by the decision that the dollar is free speech.

IMO, it is going to be very difficult to hold a truely multi-partisan convention in a nation that is so polarized.

Posted by: jlw at October 15, 2007 02:47 PM
Comment #236145

567 applications by state legislatures since 1787.
554 applications by state legislatures since 1900.
432 applications by state legislatures since 1950.
384 applications by state legislatures since 1960.
221 applications by state legislatures since 1970.
071 applications by state legislatures since 1980.
044 applications by state legislatures since 1990.

Already, on 4 occasions, there were sufficient applications by two-thirds of the states on the same subject:

  • (1)direct election of U.S. Senators

  • (2)repeal of federal income tax

  • (3)apportionment

  • (4)and balanced budget amendment
However, there is no same-subject requirement.
There is also no time-limit in Article V. It simply states “whenever”.

Congress has a clear conflict of interest, and will not address many common-sense reforms (e.g. campaign finance reform, term-limits, balanced budget, taxation, election reform, determining amount and frequency of raises for Congress, Executive War powers, etc.).

Some people have fear of Article V of the Constitution.
If justified, what does that mean?
That fear is probably not justtified, because:

  • (1) Delegates from the states are who is voting on the amendments.

  • (2) It takes three fourths of the delegates to ratify any amendment. To abuse the process, that means over three fourths of the delegates have to be corrupt, in which case we’re already in trouble.

  • (3) The convention will receive a lot of media attention; the people will be watching and the media will be reporting on it.

  • (4) The blogs and internet will be ablaze, and the Main Stream Media is finding it increasingly difficult to ignore the blogs.

  • (5) The state legislatures don’t have many (if any) motivations to give up more power to the federal government.

  • (6) If anything, the state legislatures will be reducing the federal government’s power (perhaps introduce term-limits, balanced budget, one-purpose-per-bill, prohibit Gerrymandering, etc.).

  • (7) After calling an Article V Convention, Congress has very little to do with the voting process.

Ron Brown wrote: While I agree that there are some changes needed to our present Constitution I have some reservations about writing a whole new one. 1.How can we be sure it will address the future and best interest of this country and it’s citizens? 2.How can we be sure our current rights won’t taken away?
The three-fourths requirement for ratification should help.
Ron Brown wrote: 3.Who will be writing it?
The delegates from the states.
Ron Brown wrote: (a)The current bunch we have in DC? The goes the ball game.
No, Congress doesn’t do that.
Ron Brown wrote: (b)Folks elected from each state? Better make sure we ban anyone from any political party.
Delegates from every state (F.A.Q. # 7.1).
Ron Brown wrote: (c)Lawyers? No one but them would be able to understand it.
No. A law degree is not required.
Ron Brown wrote: (d)Special interest? Heaven help us.
The three-fourths requirement for ratification should help prevent that.
Ron Brown wrote: (e)Common folks like us? How many of us really understand complexities of government enough to come up with a workable Constitution?
I think there are plenty of good candidates.
Ron Brown wrote: But then that might be just what we need. Folks that don’t understand the complexities of government. They just might make government workable again.
You could be right. And is it really that complicated? Or do cheaters just try to over-complicate it?
  • Posted by: d.a.n at October 15, 2007 02:50 PM
    Comment #236146

    Even as scary as an Article V convention may seem to people could it be any scarier than the one that gave us the remarkable documant we have today? Talk about bucking history! Until the U.S. did it no nation in human history had ever followed a successful revolution of secession with the establishment of a peaceful constitutional government. What were the chances then?

    The one thing working in everyone’s favor is that the people who did the deed would have to live in the nation framed by their actions. There’s a cold shower.

    Posted by: Lee Jamison at October 15, 2007 02:59 PM
    Comment #236147

    David,
    I meant to say- Great article.

    Posted by: Lee Jamison at October 15, 2007 03:00 PM
    Comment #236153

    Everyone, thank you for your positive comments.

    jlw asked: “David R: Where is the list of the 23 proposed amendments and changes? Do we have to buy the book to find out?”

    As far as I know, yes.

    “Are we going to be able to watch this convention or are we going to be dependent on the spin of the left and the right?”

    It is my fervent hope that C-Span will cover it. You can contact C-Span and request that it be covered. I have.

    Posted by: David R. Remer at October 15, 2007 04:33 PM
    Comment #236154

    Ron Brown and Doug Langworthy,

    Ron, in today’s political climate, it is hard to imagine the delegates would undertake to rewrite the entire Constitution - it would spell the end of their political careers. Changes made to update the principles and checks and balances to clearly address modern issues which didn’t exist in 1787, using the existing Constitution as the template, is what would be likely. But, my fear is not overreach in the effort, but, under reach, and failure to achieve consensus to actually address issues like those mentioned above.

    In the discussion of the issue, the authors cited in the article raised the issue of whether the American public is educated enough in civics to act as a constructive influence on the delegates to the Convention. The general agreement was the public is not educated enough, and that the first order of business is to radically strengthen civics education in our schools and universities.

    That too is a tough hurdle, since, the folks who select textbooks are partisan and many books are being chosen to reflect partisan revisionist history. This is how deeply entrenched the damage to our society has become as a result of the 2 party system where both sides are losing objectivity about even historical fact and interpretation. I suggest it is not insurmountable however. America needs to establish national educational standards which states and school districts may voluntarily elect to adopt in exchange for federal education dollars. In a generation we could produce a vastly better educated public regarding the Constitution, the history of our nation and the intents and purposes of the design of our form of government.

    There may be other ways to achieve this as well, of which I am unaware. But, this is one that certainly could work, and the standards could be established by a bi-partisan commission of educators whose mission and purpose is to establish civics and history educational standards which are objective or, failing that, partisan neutral.

    Posted by: David R. Remer at October 15, 2007 04:50 PM
    Comment #236155

    Rob-
    Read it carefully: it never mentions accumulation. That’s an implication read into the proportion, treating it as an arbitrary number, and counting the constitutional calls of men long dead.

    The whole point of the clause is to set a high threshold for radical alteration of the constitution, to preserve the stability of law. The stability of law is crucial. It’s what keeps rule of law from being an arbitrary joke.

    Why complicate it with cycles of calls, where the calls of a few can trigger a convention most people don’t want? Making the vote a cohesive event preserves the intent. If two thirds of the states get together and want a new constitution at the same time, They should get it. Otherwise, it should not be forced on them.

    This is the whole point of the high threshold. Democracy depends on the consent of the governed. That consent depends on the notion that although a government is imposed on us all, we have some freedoms from that government, and some say in how it’s run. This is what keeps our country together, keeps the folks who agree discussing things, rather than shooting each other in the streets or siccing various degrees of police state powers on one another.

    As for Amending the constitution, we can have that argument anytime we want. We just got to come up with something we can all agree on, rather than something meant to impose our mutual partisan desires on the rest of the country.

    Gerrold-
    I don’t think it’s handwringing to say that there’s a significant risk that after this constitution, we’ll see a significantly different government. It happened the last time.

    We should respect just how much power amendments to the constitution can change things. Even subtle changes in the law can have profound consequences.

    Posted by: Stephen Daugherty at October 15, 2007 04:57 PM
    Comment #236156

    David… agreed… we need the public to be better educated regarding the Constitution… and in fact, if this were the case, there would be no need for any alteration of the document as we might actually hold our government accountable to it.

    Check that… there would be no need for major alteration outside of those things which naturally come up as our nation continues to eveolve that require ammendment (slavery, women’s suffrage, etc).

    Posted by: Doug Langworthy at October 15, 2007 05:05 PM
    Comment #236158

    Doug, I couldn’t disagree more. Education in the Constitution would highlight the need for modifications to allow its principles to encompass manifestations in modern society the drafters could not dream of.

    Take a look again at Jefferson’s, Madison’s and Washington’s words quoted in the article. The Constitution was meant to be modified and updated. That was original intent, as well.

    Posted by: David R. Remer at October 15, 2007 05:27 PM
    Comment #236159

    David… we’re disagreeing about things on which we’re agreeing… uummm… I’m confusing myself…

    Yes, you are correct that the document needs to be continually updated (I said as much in my last post), and I am correct that it does not need to be overhauled… there is a difference.

    Better public education on constitutional law would highlight just how far from the document we have strayed… maybe we could get Paris Hilton to take up a stint as spokesperson for this cause… that might get some attention.

    Posted by: Doug Langworthy at October 15, 2007 05:34 PM
    Comment #236160

    Stephen said: “The whole point of the clause is to set a high threshold for radical alteration of the constitution, to preserve the stability of law”

    Absolutely wrong, Stephen. The point of the clause was to make ratification a high threshold, NOT a convention to discuss, debate, and propose changes. Which is why the drafters provide TWO means by which such a convention could be convened, instead of just one. It was not the intent to make a convention inordinately difficult if the states or the Congress saw the need.

    The words “simultaneous submitted” ALSO do not appear in the clause. So, your argument that the word “accumulation” doesn’t appear actually is an argument against the reasoning you propose. As I have educated you before, when the Constitution was drafted, states had very differing schedules for their legislatures to meet, thus necessitating an accumulated petition, as some legislatures did not meet but every couple years.

    Clearly the drafters intended an accumulation of petitions to occur, because the option of State legislatures petitioning simultaneously was not even possible in their day. The drafters were not into wasted words or options in the drafting of the Constitution, as your argument implies.

    Posted by: David R. Remer at October 15, 2007 05:39 PM
    Comment #236161

    Doug, thanks. Yes, a misunderstanding. I agree, the concept of writing a new constitution from scratch is not even remotely in the realm of possibility, without a devastating and totally destructive revolution or prolonged civil war first occurring. The vast majority of convention delegates would never even contemplate the notion of scrapping the current constitution, but, updating it for modern realities, to include a population of 300 million vs. the handful of millions in 1787.

    Posted by: David R. Remer at October 15, 2007 05:45 PM
    Comment #236162

    Stephen,

    Rather than rehash my entire post from the last debate, I’ll just remind you that the 27th Ammendment was proposed a full 200 years before final ratification. The Article in my reading does differentiate between the method for ratifying ammendments and the calling of a convention.

    As for this, “The whole point of the clause is to set a high threshold for radical alteration of the constitution, to preserve the stability of law. The stability of law is crucial. It’s what keeps rule of law from being an arbitrary joke.”

    I think it is worth keeping in mind that the original framers thought that the Constitution would be ammended more than it has been. During the Jefferson administration, then Secretary of State Madison considered several actions that he thought requried Constitutional Ammendments. They chose for the sake of expediency to act first and ammend later. They never quite got back to the amending. Those actions were the first steps toward the abridging of the Executive Powers David mentions in his lead articles. It’s probably also worth remembering that Jefferson at the conclusion of his Presidency was not much better thought of than Bush is now.

    My point to you is that there significant ambiguity in the clause that perhaps this would be a good ammendment to make. Accumulation was the only possability in 1797, in today’s world a roll-call vote is perfectly reasonable standard.

    Posted by: Rob at October 15, 2007 06:06 PM
    Comment #236163

    Stephen,

    Below are the ratification dates for the 27th Ammendment:

    [edit] Ratification dates
    Congress proposed the Twenty-seventh Amendment on September 25, 1789.[3] The following states ratified the amendment:

    Maryland (December 19, 1789)
    North Carolina (December 22, 1789, reaffirmed in 1989)
    South Carolina (January 19, 1790)
    Delaware (January 28, 1790)
    Vermont (November 3, 1791)
    Virginia (December 15, 1791)
    Kentucky (1792, reaffirmed in 1996)
    Ohio (May 6, 1873)
    Wyoming (March 6, 1978)
    Maine (April 27, 1983)
    Colorado (April 22, 1984)
    South Dakota (February 21, 1985)
    New Hampshire (March 7, 1985)
    Arizona (April 3, 1985)
    Tennessee (May 23, 1985)
    Oklahoma (July 10, 1985)
    New Mexico (February 14, 1986)
    Indiana (February 24, 1986)
    Utah (February 25, 1986)
    Arkansas (March 6, 1987)
    Montana (March 17, 1987)
    Connecticut (May 13, 1987)
    Wisconsin (July 15, 1987)
    Georgia (February 2, 1988)
    West Virginia (March 10, 1988)
    Louisiana (July 7, 1988)
    Iowa (February 9, 1989)
    Idaho (March 23, 1989)
    Nevada (April 26, 1989)
    Alaska (May 6, 1989)
    Oregon (May 19, 1989)
    Minnesota (May 22, 1989)
    Texas (May 25, 1989)
    Kansas (April 5, 1990)
    Florida (May 31, 1990)
    North Dakota (March 25, 1991)
    Missouri (May 5, 1992)
    Alabama (May 5, 1992)

    This definitely works in favor of the accumulation argument.

    Posted by: Rob at October 15, 2007 06:09 PM
    Comment #236168

    Yes, a Convention is not a scraping and starting-over. That would be equivalent to a coup. That is not what Article V is about. Article V is merely a method to amend the existing Constitution. Article V provides an option for the states to do that. However, Congress is violating it. Four times, enough states (two thirds) have submitted same-subject amendments. The Supreme Court never asserted that they must be contemporaneous either. The Supreme Court simply approved the direct veto of Article V by Congress. Also, the federal government acknowledged they were in fact mandated to call an Article V Convention and that refusing to do so was in fact, a violation of federal criminal law.

    Now, send a letter to your Congress persons asking about anything but Article V and you will probably get a quick response.

    Then send a letter to your Congress persons asking about Article V, and see what happens.

    You will probably never receive a response, and if you do, they will probably claim two thirds of the states have never yet submitted same-subject applications. We already know this is false, the court does not dispute this fact.

    Rob wrote: This definitely works in favor of the accumulation argument.
    Rob, you are correct.

    Article V never intended the requirement for amendment applications to be same-subject or contemporaneous. Not literally, and not even in the spirit-of-the-law. If the framers intended a time limit or contermporaneousness, they would have probably stated so, since within Article V it clearly stated one time limit for the year [1808] which was 21 years into the future …
    ____________
    Article V of the U.S. 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; provided that no amendment which may be made prior to the year one thousand eight hundred and eight [1808] 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.
    ____________

    In addition to that, when this Constitution was written [year 1787], they did not have railroads, telegraphs, telephones, or highways. Things did not happen quickly.

    Your example above demonstrates the falacy of these mythical time limits. There are no time limits. The Supreme Court did not even argue that as the reason. The Supreme Court simply allowed Congress to violate the direct and clear text of Article V of the Constitution (not just the literal meaning, but the spirit of the law too). They know, and that is probably why most Congress persons are silent on it.

    Here’s a copy of the Court brief (not really brief at 876 pages in Acrobat .pdf format), and here’s some information about the two Supreme Court case.

    Doug Langworthy wrote: Minus his anti-anything-Democrat musings, Stephen [Daugherty] is correct above.
    Funny!
    Doug Langworthy wrote: Before we flush our entire system in hopes for a better one, one devised by the same corrupt policticians we currently elect to lead us, maybe we should actually try to use the system we have.
    I agree 100% and that is what Article V is about; making amendments only. Not scraping the Constitution. Not starting over. Not a total rewrite. In fact, an attempt to scrap the Constitution is essentially a coup (and illegal). And changes to amendments are not easy to make since it takes three-fourths of the states to ratify any amendment.

    Even if no amendments are ever ratified, I think an Article V Convention is a right we should preserve, a right that Congress should respect, and a convention would raise awareness and be very educational. Perhaps some things may actually finally be addressed. After all, what are the chances Congress, on its own, will ever address campaign finance reform, term-limits, balanced budget, Gerrymandering, election reform, limits on size and frequency of Congressional raises, etc.?

    The problem is Congress has a clear conflict of interest. States have submitted 567 amendment applications, and Congress chooses to ignore it, despite their solemn pledge to uphold it.

    Posted by: d.a.n at October 15, 2007 07:02 PM
    Comment #236194

    d.a.n wrote: You could be right. And is it really that complicated? Or do cheaters just try to over-complicate it?

    If folks just went by the Constitution and let it say what it says I reckon it wouldn’t be all that complicated. Trouble is we have Congress and the Oval Office trying to circumvent it, The Supreme Court trying to rewrite it, and a whole heap of folks trying to twist it to say what they want it to so it’ll fit their special interest.
    Maybe that’s why it seems so complicated.

    David wrote: Ron, in today’s political climate, it is hard to imagine the delegates would undertake to rewrite the entire Constitution -

    AW shucks! I already had the first article (The Rights of the Citizens) written. :) or :(

    Posted by: Ron Brown at October 15, 2007 11:56 PM
    Comment #236195

    David wrote: In a generation we could produce a vastly better educated public regarding the Constitution, the history of our nation and the intents and purposes of the design of our form of government.

    It only took a generation to get a public unaware of the Constitution and our history.
    When I was in school I had to pass a test on both the Decoration of Independence and the Constitution of The United States to graduate. My younger sister who’s only 6 years younger than me didn’t have to pass the test on the Decoration but had to on the Constitution. My little sister who’s 12 years younger didn’t have to pass a test on either one. This is in the same school I went to. It only took 12 years to get teaching the Decoration and the Constitution out of the curriculum. How long will it take to get it back in?
    Also in order to graduate two years of US History was required. Today History is an elective and barely taught at all.
    These are some of the things I intend to address as a school board member.

    Posted by: Ron Brown at October 16, 2007 12:17 AM
    Comment #236196

    Ron said: “These are some of the things I intend to address as a school board member.”

    That is excellent, Ron. We need millions of Americans to make that kind of investment in our children’s and therefore, this country’s, future.

    Because I can all but guarantee that at least half of our Congress persons could not accurately answer the question: ‘What is Article V of the Constitution about?’ Let alone its particulars. Same with nearly every other article in the Constitution.

    And if they don’t know what it says, how they can possibly be expected to abide it, protect it, or defend it against onslaughts by persons both international and domestic.?

    Posted by: David R. Remer at October 16, 2007 12:27 AM
    Comment #236202

    Any group (e.g. younger Americans) that aren’t involved and interested will get used.
    And Congress is heaping tremendous debt onto future generations.

    Posted by: d.a.n at October 16, 2007 01:00 AM
    Comment #236210

    Rob-
    I think I have said this before, but you might not have been participating in the threads where I made this argument: the first constitutional convention was held within a year of its calling, and ratified to the extent required by the Constitution within nine months. If folks operating in 18th century, with communications only as fast as one could carry them on horseback, could call and enact the results of a constitutional convention, why would we take years to do the same?

    The accumulation standard seems to me to be a rather complex interpretation of something that could be more simply interpreted to mean contemperaneous calls. It eliminates the possibility that it would happen just on the whim of a few strategic states, or that it would happen because of repetition of calls by the same states.

    Additional evidence for the non-accumulation standard arises from the fact that despite their being enough calls to have initiated this convention several times over, nobody has ever called a convention this way. You would think that people in the olden days were just as committed to their causes, just as concerned about what they viewed to be constitutional issues. You would have thought that somebody would have made such a call.

    No such evidence exists.

    Why only now is the framer’s will manifested?

    Here’s what I think: people are scared, disgusted with the government. They want the power to change it, to change the very basis of the law. They reinterpret the constitution to suit, presupposing that was is not said is not denied, either.

    The major problem is that the spirit of the law is support by the majority of the states for an action. if you allow the standard to accumulate over years, that support will not likely be real. If you take the immediate standard, there’s no ambiguity for the support. With the extent to which changes in a constitutional convention can go, It would be pointless to go in without the states being in broad consensus. An accumulation standard makes an arbitrary number, rather than the mood and need of the nation, the determining factor.

    A standard of immediacy bring the most robust support and meaning to the proceedings.

    The trick is, if such a move toward accumulation is successful, you have two potential problems: one, that the convention will be a dud, and hardly any amendment will pass, or two, the convention creates changes too radical for most people, in which case, the paucity of the recent calls becomes a constitutional issue, and a liability for the legitimacy of the constitutional law. We all know, in the light of Bush’s election, that regrettable actions can be taken by majorities in times of great stress. Better that we begin a convention out of unity, rather than out of political manuevering

    Posted by: Stephen Daugherty at October 16, 2007 09:24 AM
    Comment #236211

    I have read the bulk of the text of Walker v. Congress and see an issue in the style of the suit, which was worded as an instrument designed to back both the courts and the Congress into a corner in which both either appear to be trying to overthrow the Constitution or admit to criminal wrongdoing. Its protestations to the contrary notwithstanding the suit does not turn on a single question, but weaves proposed criminal misconduct as regards tax law and the amendment question together in a too-clever-by-half hybridization that grants the courts an escape hatch over the really important issue- the fact Congress has no choice whether to call a convention or not.

    Is there a case before the courts which is sterilized against this taint of mixed issues?

    Posted by: Lee Jamison at October 16, 2007 09:35 AM
    Comment #236212

    Stephen,

    I’ve said time and again that I don’t disagree with your reluctance to call a Convention. What I disagree with is your argument against the accumulation standard. Despite, the Convention not having been called, there is clear evidence in the ratification of ammendments that the accumulation standard can and has been applied in reference to Article V. In fact, historically it has been used quite a bit. It was even used in the ratification of the first Constitution. Though the votes accumulated quickly, they still accumulated. They were not all done in a singular roll-call session, which it could have been had the framers specified the ratification process differently in Article V(i.e. the signing of the Decleration of Independence).

    So to the second part of your argument, the problem lies not in the process of accumulation but rather than in the timing of the accumulations. As I mentioned above, the ratification of the 27th Ammendment blows timilineess arguments out of the water. In my research on this topic, I’ve been unable to find a different standard for the calling of a Convention than I could for ratifying an amendment.

    I actually agree with you that we should not use an accumulation standard in calling a Constitutional Convention; however, I think to change that would require an Ammendment. I suggested above that we should pass one. I also think that in today’s world, the calling for a convention should emenate directly from the people, thus, I would suggest that any call be done based on a roll-call vote of the House who vote based on the direction of their constituents.

    For what it is worth, I think the hand-wringing over the Convention is a bit overblown. Article V only allows the convention to be called to suggest new ammendments. The ratification process doesn’t change. If the changes were too radical for people, then the ammendments would be rejected. If the convention was a dud, it would certainly not be the first time that the govenment has wasted tax payer money on political showcases.

    Posted by: Rob at October 16, 2007 09:54 AM
    Comment #236216

    Stephen,
    On what grounds could the requirement that three-fourths of the states ratify any individual amendments lead to the conclusion that there was inadequate support for the legitimacy of the results of a convention? Particularly in light of the fact that all more recent amendments have carried, in their language, ratification time-limits?

    It is clear that Article V simply does not care how the states arrange their call for a convention. What Hamilton clearly argued was that the hurdle to ratification was higher than the hurdle to the call of a convention and it was meant to be so. Why the hell would we live in fear of a convention any result of which would have to get the approval of 38 states even to come into effect?

    As to the first amendment convention it was part of the agreement by which New York was convinced to ratify the original body of the Constitution, since that initial ratification had to be unanimous. Hamilton, who wrote Article V, successfully argued that, though it would be difficult to get a “perfected” document unanimously passed, the imperfect document, once in effect, could be much more easily amended. And so it was.

    Posted by: Lee Jamison at October 16, 2007 10:45 AM
    Comment #236219
    Stephen Daugherty wrote: Here’s what I think: people are scared, disgusted with the government.
    Justifiably.
    Stephen Daugherty wrote: They want the power to change it, to change the very basis of the law.
    Not true. Supporters of Article V are not trying to change the text or interpretation of Article V. It is those in opposition that are doing that.
    Stephen Daugherty wrote: They reinterpret the constitution to suit, presupposing that was is not said is not denied, either.
    Not true. It is those that oppose Article V that are reading things into it that do not exist.

    Reinterpret? If there’s any re-interpretation happening, it is those that want to interpret:

    • “whenever” as “whenever contemporaneous”

    • and “amendments” as “same-subject amendments”.

    And why?
    What are they afraid of?
    The court’s ruling on this really makes no sense.
    The court’s ruling essentially permits Congress to re-interpret the Constitution any way it wants, without amending the Constitution.
    That is what people should be concerned with.
    Until Article V is amended, should it not be obeyed?

    Lee Jamison wrote: Is there a case before the courts which is sterilized against this taint of mixed issues?
    No, not that I know of. However, I’m not sure that would make any difference to Congress.

    Clearly, from these many discussions, it is difficult to read Article V and then understand how 523 amendment applications can be ignored, when no such time-limits exist on ratification. That is, it makes it difficult to re-interpret the text of Article V (literally and in the spirit of the law too) any other way. But that is indeed what Congress did without first amending Article V to clear up this literal interpretation.

    Therefore, it is difficult to not conclude that refusal to obey the constitution is a violation of the oath of office. Without amending Article V first, the actions of Congress are criminal, and not simply a civil or political action. Without amending Article V first, the refusal of the members of Congress to call a convention not only violates the Constitution, but is a criminal act as well; a violation of their oath of office. Congress can not merely re-interpret the Constitution. It must obey it until they explicity amend Article V to clearly state “same-subject” and “contemporaneous” (or whatever). And what are the chances that the states will ratify that? How many states do you think will ratify this new re-interpretation? How many states do you think will ratify a new re-interpretation that takes more power away from the states and gives it to Congress? Especially since our Congress is so responsible and accountable?

    It would be interesting to see, if someone were to file another suit, whether Congress would give it any more attention than the first two suits. If 34 states (two thirds) would all file a same-subject amendment contemporaneously, the states could obliterate these suspicious re-interpretations of Article V and it would then leave no doubt about it that Congress is violating the Constitution.

    NOTE1: The required (two-thirds) number of same-subject amendments has already been met 4 times, so that is not the reason for not calling a convention.

    NOTE2: Due to NOTE1 above, the only other excuses left is the “contemporaneousness” or Congress simply has the power to ignore or re-interpret the Constitution anyway they wish.

    What should concern the people is how can Congress simply veto the literal meaning of Article V without first amending Article V?
    This is a slippery slope.
    People that do not agree with the “same-subject” or “contemporaneous” arguments are not reaching.
    Their interpretation is not ridiculous or unreasonable.
    What is more unreasonable is the re-interpretation of:

    • “whenever” as “whenever contemporaneous”

    • and “amendments” as “same-subject amendments”.
    Here’s the warning. If Congress (despite how wonderfully responsible, accountable, and productive Congress is today) is allowed to arbitrarily veto the literal text of Article V of the Constitution, it will do it again and again. People in fear of a convention should really be afraid of a runaway Congress that can re-interpret or veto any parts of the Constitution that it wants, anytime it wants.

    People should send their Congress persons a letter and ask them why an Article V Convetion has not already been called?
    Then wait and see what the answer is (if any, since most are strangely silent on this subject).

    Posted by: d.a.n at October 16, 2007 11:49 AM
    Comment #236221

    d.a.n said:Any group (e.g. younger Americans) that aren’t involved and interested will get used.

    How can anyone be involved or interested unless they know what the Constitution says? And when it’s not taught in our schools how are they gonna learn?
    I have this sneaking feeling that’s exactly what our elected officials want. If more folks new what our Constitution says they’d be up in arms against our current crop of politicians and none of them would out of their cu$hy jobs the next election.

    Posted by: Ron Brown at October 16, 2007 01:01 PM
    Comment #236222

    Ron Brown said: “I have this sneaking feeling that’s exactly what our elected officials want. If more folks new what our Constitution says they’d be up in arms against our current crop of politicians and none of them would out of their cu$hy jobs the next election.”

    Bingo! Let’s keep the focus on math and science which are skills that innovative employers need and demand. Passable English is important, but, not so much they might read the Constitution on their own and understand it. But, civics and history, no! What politician in their right mind wants a knowledgeable voter capable of casting a vote other than what candidate and political party advertising tell them to cast?

    Posted by: David R. Remer at October 16, 2007 01:09 PM
    Comment #236228
    I have this sneaking feeling that’s exactly what our elected officials want.
    You bet it is. Many things are not by mere chance. These 10 things (and ignoring Article V) are not all by mere chance. Manipulation exists, and we must educate ourselves about our rights, otherwise we will lose them; we will be abused; the list of regressive systems will grow, and so will the disparity trend. In a voting nation, an educated electorate is paramount. Ignorance is an invitation to be abused, and there are always some that are all to happy to oblige. Especially where power and opportunity exists.
  • Posted by: d.a.n at October 16, 2007 02:09 PM
    Comment #236235

    Rob-
    Ratification of amendments, by its nature, has a natural limit imposed. Once a certain number of unique, individual states sign on, it’s the law of the land.

    Before I continue, let me straighten one thing out about my opinion. In the law, we do not see the constitution alone used for interpretation. We use Precedent and tradition to fill in the blanks, to work through the uncertainties of what was meant.

    I point out this standard has never been used before to call a convention, despite there being more than enough calls to call a convention more than ten times over to bring to light a rather overlooked fact: Nobody else, in the history of this country, has made the same claim, despite what must be plenty of opportunities to do so.

    Additionally, if the States themselve regarded this as true, they would not repeatedly make convention calls. If you look in the records, you’ll find some states repeating calls in the space of a year!

    The whole point of the threshold is to make sure people are together on this major method of altering the constitution. The legitimacy of the document is in its stability.

    Lee Jamison-
    Why would the PATRIOT act inspire fear if nearly everybody signed onto it in the beginning? We’ve seen all too much how the passions of the moment can lead us astray. We’ve also seen, lately, how perverse politicians can be in their relationship with the constituents.

    Dan-
    There’s no explicit call for the votes to be simply accumulated like numbers on an odometer.

    Not everything in the constitution is explicitly spelled out. Not the procedurees for attaining a warrant, what exactly constitutes cruel and unusual punishment, nor what exactly constitutes establishment of a Church or intereference with other First Amendment rights.

    It’s not personal whim or sense of semantics that drives the law in these cases, but precedent, tradition, and the judgment of the judiciary.

    And what is the precedent? Despite multiple opportunties to call such conventions, they have not sone things that way.

    Posted by: Stephen Daugherty at October 16, 2007 03:20 PM
    Comment #236237


    You fellas can’t theorize that the governments dismissal of Article V and the Constitutional ignorance of the people is a conspiracy without admitting that it is just a part of the grander conspiracy on behalf of the Corporate Government.

    A majority of the people have been there waiting for quite a while now. Although they have done fairly well, they see the trouble looming in the future and they are receptive to a new paradigm but, most are programed to follow and they need leadership.

    Posted by: jlw at October 16, 2007 03:38 PM
    Comment #236238

    Stephen’s comment completely ignores the evidence and logic in order to preserve preferences and illusions. Oh, well. Partisans all have their blind spots, just like a driver barreling down the road ab out to switch lanes, oblivious to what’s behind them in their rear and side view mirror blind spots.

    If they are allowed to change lanes without turning their head, they are going to cause harm to them and those around them. Which makes it incumbent on the rest of us to keep our eye on the Stephens in the Democratic and Republican parties, who refuse, for whatever reasons, political, ego, to turn their head and gaze into their blind spot with open eyes and awareness.

    Many Republicans are like that too, regarding their party being the fiscally responsible one. Very dangerous those blind spots and the drivers who refuse to eliminate them by looking at, and accepting, the reality around them.

    Posted by: David R. Remer at October 16, 2007 03:48 PM
    Comment #236248
    Stephen Daugherty wrote: d.a.n- There’s no explicit call for the votes to be simply accumulated like numbers on an odometer.
    There’s nothing explicit against it either.

    In fact, what is most explicit is the words “whenever” and “amendments” (plural).

    To re-interpret any other way is more of a burden the defending the literal meaning.

    Just because Congress and the Supreme Court choose to re-interpret it doesn’t make it right. Agreeing with the corrupt, do-nothing Congress and other defenders of the status quo does not make it right.

    Especially since Congress has a clear conflict of interest, which is why it conveniently chose to re-interpret (in Article V) :

    • “whenever” as “whenever contemporaneous”

    • and “amendments” as “same-subject amendments”.

    Many other people see it much differently, and for justifiable, logical, and ehtical reasons.
    There are others in government too that also believe Article V is being violated (none in Congress, of course).
    Many other people believe Article V should be obeyed; not just because of the literal meaning and text, but in the spirit of the law too, because requiring two-thirds of states to all do apply the same-subject amendment contemporaneously is too onerous; too ridiculous; practically impossible. Herding cats would be easier.

    The interpretation I choose is the not just the literal meaning, but what I think is also the intended meaning. And I think it is a stretch to see it otherwise, as evidenced by the questions and disputes over this issue.

    In my opinion, until Article V is amended to explicity define time-limits, and clear up these re-interpretations regarding same-subject amendments and the contemporaneousness of amendments, then I believe Congress should obey the Constitution. The Courts have essentially given Congress the right to veto the literal meaning without amending Article V first. Therefore, it is just a matter of time before other parts of the Constitution are re-interpreted. And prescendent is not a good excuse, since some amendments were allowed a long time for ratification, and some were subject to time limits (e.g. 7 years).

    Since Congress has a clear conflict of interest, and is allowed this creative re-interpreation of Article V, what is to prevent Congress from another create re-interpretation should two-thirds of the states ever simultaneously submit same-subjet applications for an amendment?

    Congress should err on the side of the will of the people, the literal text of Article V, and the probable intent of Article V, instead of always trying to weasel out of everything. No wonder they call it Do-Nothing Congress.

    Posted by: d.a.n at October 16, 2007 04:56 PM
    Comment #236252

    David R. Remer-
    Let’s see the evidence.

    Since the Constitution was ratified, there has not been one convention, much less one convened under the accumulation standard.

    We have had multiple calls from nearly ever state in the union (if not all).

    There is no explicit requirement for Congress to recognize or forbid the recognition of accumulated calls together. And just to clarify, we’re talking about beyond a year or two in accumulation.

    High threshold standards are asserted in many places, such as the passage of a bill over a veto, the proposing of a single amendment through Congress, and in the requirements of ratification for all amendments, regardless of origin.

    Thresholds are meaningless if calls are allowed to accumulate arbitrarily, and over extended periods of time. You could theoretically trigger a convention involving all the states by just the calls of a few. Why set high thresholds, then, if you’re thinking of having the thresholds be so easily surmountable, and under such arbitrary circumstances? All the other thresholds seem to indicate the need for a supermajority, a broad consensus of people, representatives and states in order to perform the extraordinary procedures laid out.

    So, the evidence seems to indicate that the intentions of the founders were for people to call for the convention as simultaneously as possible. Given that the states, who are the real stakeholders in this process seem to act like the comtemperaneous standard holds, that there is no historical record of anybody using the accumulation standard, and they’re not the ones complaining right now, and the fact that there is no explicit support given for the standard, there’s no reason to consider it the sole legal standard.

    Personally, David? I offer the broader vision of history, law, and constitutional interpretation, rather than resort to making straw men and adversaries out of the person I’m debating with. The ideosyncratic interpretation of the constitution is not enough to make that interpretation the law of the land. The ad hominem remarks towards those who don’t agree doesn’t help the argument any.

    What cannot be argued strongly without strong words, cannot be made right with them.

    The real question here is “Why do we have to use this standard, and not the one we’ve been using for over 200 years?” With no explicit requirement for allowing accumulation indefinitely, much less within any specified time period, what would put the contemperaneous standard at odds with the Constitution?

    Posted by: Stephen Daugherty at October 16, 2007 05:50 PM
    Comment #236253

    Stephen,

    You said, “Ratification of amendments, by its nature, has a natural limit imposed. Once a certain number of unique, individual states sign on, it’s the law of the land.”

    Is this different than the accumulation method that you have said doesn’t apply to article V? My point is that in my research I can find nothing to the method for calling an Article V Convention from the ratification of a particular ammendment. I’ve failed to find much of any constitutational law references on the matter at all. Can you please point to some to support your claim?

    “Before I continue, let me straighten one thing out about my opinion. In the law, we do not see the constitution alone used for interpretation. We use Precedent and tradition to fill in the blanks, to work through the uncertainties of what was meant.”

    Agreed mostly, because the ratification of Ammendments and the calling for a Constitutional Ammendment are both described in Article V, I have looked to precedent in the ratification process for ammendments to support my logic. Tradition is a dangerous method to use to support lawful action in Constitutional law. For example, it’s what got us further and further expansions of the Unitary Executive construct. I would rather not depend upon tradition in matters of constitutional law and rather depend on precedent and legal bound interpretation. I think I have been using this method to support my logic while you have been relying on interpretation.

    “I point out this standard has never been used before to call a convention, despite there being more than enough calls to call a convention more than ten times over to bring to light a rather overlooked fact: Nobody else, in the history of this country, has made the same claim, despite what must be plenty of opportunities to do so.”

    This is undoubtedly a fact that supports the tradition arguments. There are others that I have stated that support the call based on precedent. Are you picking and choosing your interpretative methods to get the result that you desire?
    “Additionally, if the States themselve regarded this as true, they would not repeatedly make convention calls. If you look in the records, you’ll find some states repeating calls in the space of a year!”

    There were also multiple affirmations by States in support of the 27th Ammendmnet. I’m not sure that this proves anything necessarily.

    “The whole point of the threshold is to make sure people are together on this major method of altering the constitution. The legitimacy of the document is in its stability.”

    It bears repeating that this is not a method to alter the Constitution but merely to suggest alterations. Any ammendment suggested by the Convention would still be required to meet the ratification guidelines further described in Article V. Food for thought, I believe it is likely that because the other methods have in the past been equally effective, this may explain why no one has clamored loudly for such a call to action. The immigration issue may push this over the edge.

    What I find most interesting is your continued unwillingness to consider the arguments of others in light of additional evidence on this topic. Something I read recently about the disruptive lenses of bias springs to mind.

    Posted by: Rob at October 16, 2007 05:55 PM
    Comment #236255

    Dan-
    The trouble here is that if there’s no explicit prohibition or prescription in the constitution, then you have no constitutional argument for the exclusive validity of your standard, and therefore cannot say that the refusal or simple neglect of the Congress throughout American history is illegal.

    In the space of all possible constitutional laws, only a few laws have been legislated, and those, not the other, potential laws, represent the laws that must be followed and can be followed as law.

    The question of whether Congress and the Supreme Court are doing the right thing can be made fairly subjective. People have all sorts of opinions about these things. In the end, though, we set up Congress to make the law, the Executive branch to carry it out, and the Judicial branch to interpret it. Whether or not we agree, they have authority. We did not set up this system to agree with any one person’s sense of right and wrong, but our collective sense of it, bounced back and forth through a system meant to represent our political will.

    At the end of the day, the government must represent an agreement on what is right between its citizens, rather than an imposition of the few on the many.

    That is the spirit of the requirements for Article V, and why I do not budge from the notion that it must be satisfied in full, with 34 or more states deciding at one time that there must be a convention. We cannot profit by dragging people unwillingly into an unwanted political process.

    Posted by: Stephen Daugherty at October 16, 2007 06:02 PM
    Comment #236256

    Stephen,
    That’s you opinion.
    Not everyone’s
    So you side with Congress.
    Imagine that.

    Posted by: d.a.n at October 16, 2007 06:37 PM
    Comment #236258

    So what is this mysterious time limit?
    The number of years it took to accumulate 34 same-subject amendment applications, minus one ?
    What ever interpetation is convenient?
    What good is the Constitution if the literal text can be vetoed without amending it?
    If the states ever do get an Article V Convention, Term-Limits should be at the top of the list.

    Posted by: d.a.n at October 16, 2007 06:53 PM
    Comment #236262

    Stephen said: “The trouble here is that if there’s no explicit prohibition or prescription in the constitution,”

    But there is a prescription. The word “whenever” means “at such time as” the following condition is met. What part of English do you not speak or understand? Or, are you playing the Clinton game of it depends on what the meaning of is, is? Your entire argument is naive and without logical or linguistic merit.

    Posted by: David R. Remer at October 16, 2007 08:28 PM
    Comment #236264

    Stephen said: “And just to clarify, we’re talking about beyond a year or two in accumulation.”

    No, we are not. That appears to be your idiosyncratic dictate, but, then you are not King George, and lack to power to dictate according to personal whim.

    ‘Whenever’ such events occur, means ‘at such time as’ such events occur. It is quite explicit on this point. Unless you translate whenever in Aboriginal Bornean, to Japanese, and then back into English. Then it may lose that meaning in the translation.

    Posted by: David R. Remer at October 16, 2007 08:35 PM
    Comment #236272

    Dan-
    It’s not my opinion solely. It’s the opinion of the states who repeatedly make calls, yet have not troubled Congress over it’s failure to do things your way.

    As for time limits, there’s none required for roll call votes, but you don’t see people taking weeks to do one of those.

    Nor is there any explicit time limit on voting for candidates. Yet for some odd reason, we have it all occur during one day.

    Hell, I don’t think there’s even a day set aside as the only constitutionally viable day to vote. Yet we set one aside.

    The Constitution does not require a time limit, but it does not preclude one, either, anymore than the lack of an explicit time limit prohibits the practice of keeping Senate and House votes brief, and election seasons within prescribed time limits.

    Here’s the question I want to ask: what do you have against getting all thirty four calls together at one time? What’s the problem with only calling the convention after there’s been a clear, unambiguous call for it? Aren’t you denying the states and their current governments their say in whether they want to take this country to a convention if we do it this way?

    In a way, you could say I side with Congress. That is, the congress of each and every state that should have, in its current form, the right to determine whether it wishes to call for a convention.

    You don’t realize it, but you’re taking power away from people at the local and state level, in this day and age, in order to get the convention now rather than wait for the overwhelming consensus to back it under the traditional standard.

    My feeling, and this backed by most of what the framers talked about, is that this is about balancing the power of the states against that of the Federal government which they are obligated to be a part of. By making the standard one of indefinite accumulation, you rob the states as they are now of their say.

    I think you do this, though, out of misguided good intentions. But I do think you’re wrong.

    David R. Remer-
    “Whenever” does not mean under every possible circumstance semantics and imagination could dream up. Everything depends on what the definition of three quarters of the several states. For the most part, people treat it like it sounds, like a proportion, which would mean contemperaneous votes.

    “whenever” is when the conditions are met. Well, are the conditions not met when thirty four states get together and call a convention?

    Consider that under an accumulation standard, you could have any number of states make a call at one time, and trigger it. Making it an accumulation standard makes it too easy to make a call, which is definitely not the intention of those who set such a high standard in Congress and among the states for the consensus it would take to propose and ratify regular amendments.

    With the contemperaneous standard, you know exactly where you stand, exactly what kind of support it takes to call the convention. There’s no need to worry that some regional party might use power in their states to impose a convention on everybody else, just because they can.

    The whole point of the threshold is to have the country call these conventions as close to a whole as is reasonable to expect, so that there’s far less argument about whether there should be a convention held at all, and far more focus on the purpose for which it is called.

    As for why I picked a year or two? Simple: that’s the longest the Congress or the state Governments can be expected to remain themselves.

    Posted by: Stephen Daugherty at October 16, 2007 10:01 PM
    Comment #236273

    Term limits….yes, yes and YES. I was contemplating a possibility of:

    6 x two year terms max in the House of Representatives for a total of 12 years occupied in one particular seat in the House.

    2 x six year terms max in the U.S. Senate for the identical total of 12 years occupied in one particular seat in the Senate.

    3 x four year terms max as President, also for the identical total of 12 years occupied in one particular seat in the Executive branch(keep in mind that as recently as little more than half-century ago, Franklin Roosevelt was elected to a FOURTH term before his untimely death cut his final term short and the law was subsequently altered to limit the President’s term to two).

    These term limits are not to say that the lawmaker would be prohibited from running for any other office - see examples like Jerry Brown(Cal. Gov., Oakland Mayor, Cal AG. or Zell Miller(Georgia Gov., Georgia Sen. & a host of others). But what these term limits would do would be to prevent politicians from “pitching a tent” as incumbants for DECADES in the SAME DAMN SEAT….maddening.

    Posted by: silversurfer at October 16, 2007 10:10 PM
    Comment #236302

    silversurfer,
    Yes, term-limits are needed because:

    Also, the structure of the Senate should be changed to resemble the structure of the House, because the current structure of the Senate (two Senators per state) allows a state of very small population to over rule the will of the people of states with much larger populations. I wouldn’t extend the President’s term beyond the current 2 x 4 year term-limit, and I’d change the Senate terms to 2 years also (like the House).

    Stephen Daugherty wrote: Here’s the question I want to ask: what do you have against getting all thirty four calls together at one time?
    Nothing. But that requirement is ridiculous. Expecting two-thirds of the states to ever submit amendment applications simultaneously is ridiculous and oppressive. Herding cats would be easier. Congress and the Supreme Court have suspiciously and dishonestly re-interpreted Article V in such a way that the bar is set so high, it makes it too difficult to ever bring about an Article V Convention. What is Congress afraid of? Term-Limits? Campaign Finance Reform? Congress has a clear conflict of interest, which explains their ridiculous re-interpretation of Article V.

    Besides, the word “whenever” and “amendments” is quite clear. Siding with Congress and the Supreme Court on this doesn’t make it right. It merely supports the corrupt status quo. Now that the states see that Congress is violating Article V due to a suspicious re-interpretation of :

    • “whenever” as “whenever contemporaneous”

    • and “amendments” as “same-subject amendments”
    … the states will be forced to try to get 34 states to submit same-subject amendments simultanouesly.

    But then, what new hurdles will Do-Nothing Congress and the complicit Supreme Court invent to set the bar too high again?

    So, if two thirds of the states do manage to meet the new re-interpretations of Article V, what will keep Congress and the Supreme Court from a new re-interpretation?

    Stephen, Some in the government has actually already admitted to violating Article V.

    Check this out (blog.johnedwards.com/story/2007/10/15/203631/82)

    Posted by: d.a.n at October 17, 2007 11:08 AM
    Comment #236303

    Stephen,

    Once again I refer you to Alexander Hamilton in Federalist 85

    “But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place. There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution.”

    In this paragraph there is support for the notion that, while the desire of the requisite number of states need not necessarily be directed at a single moment in time, Hamilton seems to suggest that they should, or might reasonably be expected to, be directed at a single purpose. On the other hand, he then adds the following-

    ” By the fifth article of the plan, the Congres will be obliged “on the application of the legislatures of two thirds of the States, which at present amount to nine, to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof.” The words of this article are peremptory. The Congress “shall call a convention.” Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air.”

    Again, no time limit implied, but here Hamilton’s wording allows that the convention itself will be a platform for the “proposing of amendments”. So Stephen, on the basis of the actual words of the person most responsible for the wording used in the Constitution (Hamilton was the chairman of the Styles Comittee which was charged with putting the intent of the convention into clear language.) the call for a convention can not be said to be tied to subject, and there is no mention of time. You are not “reading intent into” Hamilton’s words as even a wishful legal scholar might. You are making things up as a child might make up powers for his favorite superhero.

    As Hamiloton closed his defense of the nascent Constitution he quoted David Hume

    “To balance a large state or society Õsays heå, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they INEVITABLY fall into in their first trials and experiments.”

    Hamilton readily admits to the imperfections of the original Constitution and knows it will need to be amended. He has spent the bulk of this final Federalist Paper reassuring the reluctant people of the state of New York that it will be done and probably done often and without needing the cooperation of a willing Congress.

    The members of Congress who would stand in the way of this process are also making up powers for their favorite superheroes who, unfortunately, are themselves.

    Posted by: Lee Jamison at October 17, 2007 11:13 AM
    Comment #236307

    If you are intrigued by the idea of a convention, you should check out Sabato’s YouTube page with videos of him discussing his rationale.

    Posted by: UVa Politico at October 17, 2007 11:33 AM
    Comment #236310

    d.a.n.,

    I favor the current structure in that it is a guard against a type of full-fledged “mob rule”. The fact that the U.S. is not a democracy but actually a representative Constitutional Republic serves to protect the rights and POCKETBOOKS of the minority.

    If these states with their vast populations start incurring tremendous state deficits(many already are - just check out the coming MONSOON of budgetary woes that will hit California in the near future…Dan Walters of the Sacramento Bee has written extensively on the matter), anyway, the states with the vast population will allocate themselves a greater and greater piece of the Federal Government’s pie, and the less populated states will have nary a say in the matter.

    So, in effect, states which are fiscally irresponsible, will take money away from those who pay Federal taxes that live in states that are more fiscally disciplined. It ain’t right to expect taxpayers in, say, Oklahoma, to have to bail out people in, say New Jersey, time and time again through Federal money appropriations.

    You would be penalizing good behaviour and rewarding poor choices over and over again due to the fact that the states with the vast populations will continually use the “mob power grab” to “gangster” the money that other states pay into Federal taxes.

    Yet another reason I favor reducing the role the Federal government plays in the lives of Americans…I guess its just a Libertarian thing, but, hey, someone’s gotta do it:)

    Posted by: silversurfer at October 17, 2007 12:11 PM
    Comment #236318
    d.a.n., I favor the current structure in that it is a guard against a type of full-fledged “mob rule”.
    And a more representative Senate (more like the House instead of 2 Senators per state) would enhance the representation; not harm it. And as long as the Constitution isn’t violated, and no one’s rights are violated, shouldn’t the will of the majority prevail?

    Or should the will of the minority prevail?

    With the current Senate structure, a few very less populous states can overrule the will of the majority. Is that right? Is that true representation? That’s really the problem we have these days. And a filibuster and other abused rules exacerbate the problem to allow a minority to obstruct, despite the House that may have voted in favor of a BILL.

    But, when you get right down to it, the real problem is that Congress and the federal government are simply dysfunctional, bloated, wasteful, irresponsible, corrupt, and unaccountable. And still they find time to give themselves their 9th raise in 10 years, cu$hy perks, resist ethics reform, campaign finance reform, Article V, balanced-budget, term-limits, and any common-sense, no-brainer reforms that might even remote reduce their power, opportunities for self-gain, or reduce the security of their cu$hy incumbencies. Also, the size of a mob can vary. And some mobs are the obstructionist minorities. Is that really a good thing? More often than not, it probably is one of the reasons Do-Nothing Congress can’t get much done.

    On the issue of money coming back to states, look at which states get the most federal money (e.g. Alaska, Hawaii, D.C., New Hampshire, West Virginia, Montana, etc.). They receive the highest per-capita pork-barrel.

    Also, this entire system of sending the money to the federal government in hopes of getting part of it back in the form of pork-barrel, graft, and waste is a practice that should be reduced or eliminated. The states have made themselves too dependent on the federal government. And the federal government most certainly abuses the entire process.

    You would be penalizing good behaviour and rewarding poor choices over and over again due to the fact that the states with the vast populations will continually use the “mob power grab” to “gangster” the money that other states pay into Federal taxes.
    Again, this entire system should be re-examined. Also, except for matters of national defense, why not distribute funds to all states equally per-capita and end this competition for pork-barrel, waste, and graft; a process that can never be fair?

    But then, Congress also enjoys a 95% to 99% re-election rate too. So voters are culpable too.

    Posted by: d.a.n at October 17, 2007 01:44 PM
    Comment #236320

    d.a.n.,
    I’ve become quite a fan of the split between the Senate and the House. Ditto the Electoral College, and for the same reasons. One of the great strengths of the U.S. is the inherent balance of power between the states and the Federal Government. We often lose track of this vital interest of a separate form of constituency, which preserves a fractiousness in federal interests and sets up a check against mob rule and the dominance against a single KIND of constituency that could overwhelm the interests of the few. For instance the Senate preserves the influence of a rural population which could be devastated by largely urban and suburban populations were they to have no real reason to respect the rights of that minority. Your plan would strip away their influence.

    This also preserves the crucial “laboratory of the states” in the development of law and policy whereby many of our federal laws of today had a trial by fire in one or more of the states first.

    The founders were a smarter bunch than the vast majority of us dimwitted moderns give them credit for being. It’s easy to look down on those on whose shoulders you stand.

    Posted by: Lee Jamison at October 17, 2007 02:07 PM
    Comment #236323
    d.a.n., I’ve become quite a fan of the split between the Senate and the House. Ditto the Electoral College, and for the same reasons.
    I’m not a fan of the electoral college or the skewed representation in the Senate. Both have obvious flaws (as history has shown us; i.e. when the popular vote and electoral college don’t agree; and when a much smaller minority in the Senate can prevail over the majority).

    But neither of those things are high on the list of major things to be concerned about.

    Your plan would strip away their influence.
    And that would appear to be the right way if you believe the majority should prevail (whether it is 50%, two-thirds, or three-fourths, etc.) as long as the majority is not violating the rights of others or the Constitution. Is the minority supposed to prevail? Is that representative democracy?

    If a larger than 50% majority is required (as in a override of a presidential veto, or the two-thirds of states to trigger an Article V Convention, or the three-fourths to ratify an amendment, etc.), then would it not make more sense to simply set the percentage to the desired value (e.g. three-fifths, or five-sixths, or six-sevenths, etc.) instead of allowing a minority to prevail?

    Take the current situation. The 435 representatives of the House pass a BILL, but a few in the Senate are able to thwart that, despite representing a much smaller group. That is essentially the same thing as requiring a much larger than 50% majority to ever get anything done (like the two-thirds required to override the President’s veto). And the filibuster is another abuse that thwarts the majority. Unless a larger-than-50% majority is required, why should the minority prevail?

    Thus, as a result, we end up with dysfunctional system, and little (if anything) gets done because a minority can always override the majority. Partisan warfare exacerbates all of it, such that without a supermajority by one party can’t pass any BILLs. But a supermajority is dangerous too (as we have see of late), since power corrupts.

    Why do we create systems based on a majority (with protections by the Constitution), and then shoot ourselves in the foot by allowing a minority to prevail instead? To me, none of it really makes sense. What would make more sense is to eliminate these over-complications and set the desired percentages. These over-complications are flawed (as we’ve seen) and get abused (e.g. filibuster). These over-complications do more harm than good.

    At any rate, the number of Senators is separate issue, and not really a major problem … not as major as the growing number of problems that Do-Nothing Congress continues to ignore and allow to grow in number and severity.

    And that separate issue (i.e. the numbers in the Senate), and any other badly-needed, common-sense, no-brainer reforms will ever be addressed as long as Congress can veto the Constitution, and repeatedly re-interpret parts of it to make some things difficult (if not impossible), such as Article V.

    Posted by: d.a.n at October 17, 2007 03:28 PM
    Comment #236327

    Dan,

    Do you not understand that the Senate is the only place the smaller States have equal representation?

    Without their two Senators the smaller states would have little or no voice in the government

    Posted by: Rocky at October 17, 2007 03:53 PM
    Comment #236331
    Dan, Do you not understand that the Senate is the only place the smaller States have equal representation?
    Rocky, Yes, I understand that side of the argument quite well.

    I simply do not agree with it. But like I said, it’s not a big deal with me. It simply makes more sense to me to provide representation based on population (like in the House). The Constitution and laws should prevent mob rule.

    Without their two Senators the smaller states would have little or no voice in the government
    That’s debatable.

    In the current system, if representation is based on population, then the states do not have an equal voice in the Senate.
    If representation is based on state alone, then they have an equal voice.
    That’s the question.
    Which is better, and why?
    The counter argument is that smaller states more voice than they deserve with only two senators per state; making it possible to thwart the majority.
    Should the minority prevail?
    And to help prove this point, look at the pork-barrel per-capita.
    The smaller states seem to be doing quite well with getting a share of pork-barrel per capita
    Is that distribution equal and fair? Many would so “no”.
    In fact California and Texas are at the very bottom of the list, New York is near the bottom, and all states with populations over 6 million (half of all 50 states) are in the bottom half of the list.
    Therefore, one could make the argument that the smaller states are getting the highest pork per capita because of unequal (i.e. more) representation than bigger states.
    If so, is that fair?
    It definitely looks like the most populous states are getting shorted.

    There are pros and cons for both sides of that argument.

    But again, the numbers in the Senate is not a major issue with me anyway; certainly not something I’d pursue.
    Why? Because it wouldn’t be such a huge issue if it weren’t for so much pork-barrel, graft, and waste.

    Any way, what is of more importance is whether Congress is ignoring Article V or not. There are some in government that think so, despite the Supreme Court’s allowing Congress to veto the text of Article V.

    And what is of more importance than that is a growing number of problems (a 30 year disparity trend) that do not appear to be receiving adequate attention by Congress. Not just me. Others too based on 11% to 18% approval ratings for Congress and 26% approval ratings for G.W.Bush(43).

    Posted by: d.a.n at October 17, 2007 05:16 PM
    Comment #236334

    Dan-
    Something has to pass both the House and the Senate. That way, smaller states have equal standing with larger states when all is said and done. The House enables states with large populations to have their fair say. The Senate allows the more sparsely populated states their say.

    It makes sense if you see it in terms of keeping a composite nation together. Our federal system was the first of its kind in the world, and it worked, because there was less reason for contention between the different part of the country.

    If you want undestand how crucial it is, reflect on this: of the fifty states, only 8 have populations over ten million. Of the remaining 42, only half have populations over five million. Of that, only half have a population over two million.

    Our most populous states are coastal, leaving most of our states in the interior relatively small. See for yourself

    Seeing as how this is the United States, the ability of the states to have the power to determine policy is crucial. Pure majority rules is compromised to allow the concerns of states and of the individual to play out as well.

    You see this as a corruption of things, but it prevents many forms of corruption that could have unfortunate results for our country.

    If you don’t let minorities have a voice, have some degree of control over their fate, you won’t be able to maintain a working political relationship with them. Look at Iraq to see the hazards of that. Political selfishness is rarely rewarded with political stability.

    Posted by: Stephen Daugherty at October 17, 2007 05:59 PM
    Comment #236341

    We need a convention now to prevent more unnecessary war. We need more democracy including initative, referrendum and recall procedures at the national level. WE THE PEOPLE need to be able remove Bush and his evil cabal.

    I have supported a convention for over 20 years. See the collection of materials I have at http://metamind.us/cc and the embryonic site for a “CyberSpace Consensus Convention” at http://nodes.org

    I believe we really need to “form consensus” because whatever is proposed by a convention would need 3/4 of the States to ratify it. Let’s form the consensus online. Consensus rules!
    The better the consensus, the more powerful it is.

    Posted by: Steve Moyer at October 17, 2007 07:24 PM
    Comment #236353

    Steve Moyer,

    I agree. The three-fourths requirement is substantial.

    Unfortunately, some seek to conveniently re-interpret the literal text.

    Therefore, we need all states to re-submit all of their amendment applications simultaneously.

    Then we will see what new convenient hurdles Congress imposes.

    Posted by: d.a.n at October 17, 2007 09:39 PM
    Comment #236354

    Stephen Daugherty,
    You have complained and blamed the Senate, but now support the minority’s influence. Go figure.

    Posted by: d.a.n at October 17, 2007 09:41 PM
    Comment #236359

    d.a.n.
    The fact of the matter is none of us want the “majority” to rule, not one of us. We all want a way for the best idea to rule, and we all disagree strongly what that “best idea” is. No other nation has a basic governmental architecture which allows so many ways for us to get the “best idea” into some venue, be it a House with a large number of easily swayed members, or a Senate with a small number of difficult to sway members, or various state houses where ideas can get a foothold and create competitive advantages for our state other states must follow. It is simply a brilliant basic system.

    Do I want amendments? You Bet!
    We need to force term limits for sure, and get our representatives out of the anachronism that is Washington D.C. (where people with deep pockets have them all readily at hand to curry their favor). There is no point in the government having a company town that thinks it owns us. An nobody NOBODY should be able to make a life-long career in any one office of the federal government- not even in the Supreme Court.

    As to consensus, we can begin that right here, right on one (or all three) of these boards. What do you want to see changed? Come up with good wording, being mindful of how an amendment could be enforced in “appropriate legislation”. Then we as a group can cherry-pick the best of the lot and go from there.

    Want to improve impeachment? How would you do it? Want to mess with the Electoral College? Work on the idea. How about having a discussion of the mess we have in the presidential nominating process? I can’t think of a single place better designed for this effort than WatchBlog.

    Posted by: Lee Jamison at October 17, 2007 10:01 PM
    Comment #236362

    Stephen Daugherty said: “Our federal system was the first of its kind in the world, and it worked, because there was less reason for contention between the different part of the country.”

    The federal system worked because the North won. But, the contention it created could not have been greater nor more lethal between the different parts of the country.

    Posted by: David R. Remer at October 17, 2007 10:23 PM
    Comment #236391
    Lee Jamison wrote: d.a.n. The fact of the matter is none of us want the “majority” to rule, not one of us.
    Hmmmmm … I not sure about that.

    I want the majority to rule.
    The majority usually wants the majority to rule (whether the requirement be greater than 50%, two-thirds, or three-fourths, etc.).
    The frustration we continually see is the minority prevailing with abuses (e.g. filibusters), and the weighting in the Senate.
    There’s often fallacy in absolutes such as none, always, never, all, etc.

    Lee Jamison wrote: We all want a way for the best idea to rule, . . .
    Well, most of us. Yes.
    Lee Jamison wrote: … . and we all disagree strongly what that “best idea” is.
    HHmmmmm … not really.

    In many cases, the House passed a BILL with a large majority, but it died in the Senate due to the different weighting which gives are larger voice to the minority by virtue of two senators per state.
    In fact, many are saying today that the Senate is the problem.

    Lee Jamison wrote: No other nation has a basic governmental architecture which allows so many ways for us to get the “best idea” into some venue, be it a House with a large number of easily swayed members, or a Senate with a small number of difficult to sway members, or various state houses where ideas can get a foothold and create competitive advantages for our state other states must follow. It is simply a brilliant basic system.
    It’s a good start. There is wisdom in much of it. But abuses have crept into it. And changes (amendments) are needed for problems that did not exist 220 years ago.
    Lee Jamison wrote: Do I want amendments? You Bet! We need to force term limits for sure,
    I used to be against that, but now understand it is necessary since tenure corrupts.
    Lee Jamison wrote: and get our representatives out of the anachronism that is Washington D.C. (where people with deep pockets have them all readily at hand to curry their favor).
    This is why Article V is important. Congress has a clear conflict of interest. Congress is very unlikely to ever pass amendments such as term-limits and campaign finance reform, or anything that may reduce their power or opportunities for self-gain.
    Lee Jamison wrote: There is no point in the government having a company town that thinks it owns us. An nobody NOBODY should be able to make a life-long career in any one office of the federal government- not even in the Supreme Court.
    A tiny 0.15% of all 200 million voters make 83% of all federal campaign donations (of $200 or more).

    The remaining 99.85% of the 200 million voters can’t easily compete with that.
    At least, not as long as too many voters repeatedly reward those very same bought-and-paid-for incumbent politicians with perpetual re-election (re-elction rates over 96% since year 1980).

    Lee Jamison wrote: As to consensus, we can begin that right here, right on one (or all three) of these boards. What do you want to see changed? Come up with good wording, being mindful of how an amendment could be enforced in “appropriate legislation”. Then we as a group can cherry-pick the best of the lot and go from there.
    There’s a lot of that going on already (for example).

    There’s just one problem with getting any amendments.
    Congress has (in Article V) re-interpreted:

    • “whenever” as “whenever contemporaneous”

    • and “amendments” as “same-subject amendments”.

    It’s hard to clear the hurdle when the bar keeps getting moved higher.

    Had states for the last 220 years understood that re-interpretation, they might have been able to get some amendments considered.
    But because of the clever and suspicious re-interpretation of Article V, the states have NEVER been allowed an Article V Convention.
    And it would probably be easier to herd cats than get two-thirds of all states so file same-subject amendments simultaneously.

    Lee Jamison wrote: Want to improve impeachment? How would you do it?
    That’s not high on my list. Obviously not Congress’ either. But it could be one of many amendments presented for consideration, should two-thirds of the states submit an amendment request.
    Lee Jamison wrote: Want to mess with the Electoral College? Work on the idea.
    The Electoral College reveals its flaws in close elections. Still, that’s not high on my list. But it could be one of many amendments presented for consideration, should two-thirds of the states submit an amendment request.
    Lee Jamison wrote: How about having a discussion of the mess we have in the presidential nominating process? I can’t think of a single place better designed for this effort than WatchBlog.
    OK. Perhaps you should start a new thread though?

    What would probably make the most sense though is to ask all states to re-submit their many amendment requests again simultaneously.
    Then we will see what new excuses Congress can dream up for denying the states an Article V Convention.
    That is, the states have already submitted 523 amendment requests.
    What they did not understand was that Congress was changing the rules as they go by re-interpreting “whenever” to “whenever contemporaneously” and “amendments” to “same-subject amendments”.
    Therefore, there are hundreds of amendment applications ALREADY in the queue, and the next logical step would seem to do what it takes to get a convention to have them finally addressed.
    Unless the states want to keep letting the federal government to continue to grab more power, grow more bloated, and perpetuate the myth that we can all live at the expense of everyone else, the states should re-submit their applications simultaneously. Unfortunately, with the bar set so high, getting two-thirds of all states to submit same-subject amendments simultaneously is probably harder than herding cats. At any rate, states should all now be on notice of this new threshold (a moving target).

    Another solution is something voters can do; the one simple, responsible thing they were supposed to do all along. Don’t repeatedly reward irresponsible, corrupt politicians with perpetual re-election. There’s a good chance that these things will come about eventually, when the consequences of not doing them finally becomes too painful.

    Posted by: d.a.n at October 18, 2007 07:15 AM
    Comment #236397

    Dan-
    Let me set you straight on something. I know you believe that I believe in all out partisan warfare. I believe though, contrary to your assumption, that the Republicans have the right to use filibusters and procedural tricks (Like they just did with the new FISA bill)

    You see, I’m not interested in taking every bit of power away from my enemies.

    First, it’d let them give themselves the martyr treatment. I’d rather they lose power fair and square, because voters find what they did distasteful.

    Second, I believe in our Democracy, and the use of politics to represent the interests of one’s constituents. Majority rule does not always produce wise or good results. Sometimes the minorities have to win, though it frustrates the majority.

    Third, I believe that whatever power we grab from them, they’ll impose on us when we return. The basic principle is one of mutual disarmament. It’s like that one guy said: the irony of Dick Cheney’s power grab at the executive branch is that all those expanded powers are going to land in the lap of Hillary Clinton. If you want to deny your opponents power you don’t want them to have, deny it to yourself.

    However, all that said, I feel no problem whatsoever with letting them have it and exposing their actions to the world. I have no problem telling you about things like this:

    As noted below, GOP Rep. Eric Cantor came up with a clever way of throwing a wrench into the FISA bill, which was scheduled to be voted on today and which is opposed by Republicans.

    He threatened this afternoon to submit an amendment that would have mandated that nothing in the bill “shall be construed to prohibit the intelligence community from conducting surveillance needed to prevent Osama Bin Laden, Al Qaeda, or any other foreign terrorist organization…from attacking the United States or any United States person.”

    Though this language has no real legislative meaning, it nonetheless was effective in forcing Dems to yank the bill. That’s because he introduced this in such a way that would have procedurally forced the bill to go back to committee and delayed it for an untold amount of time.

    I believe sunlight is the best disinfectant. I’m complaining so that people understand just what is going on, what kind of games these people are playing, what their actions are supporting, and what the result of their shenanigans are. The Republicans have the choice, which I gladly let them have, of doing scuzzy things so they can make the Democrats look bad, like defaming small children, vetoing healthcare, blockading House legislation through cloture votes that people really want, and I have the choice to show everybody what they’re doing.

    You’re of such a mindset that you seek to take power away from people who you don’t agree with. I’m of the mindset that this system was set up so that nobody could take or give political power arbitrarily, that it would be given to them and taken from them according to popular elections and constitutional principles previously agreed upon by overwhelming consensus.

    As a Democrat, I have more reason than some to find the current impasse supremely frustrating. I don’t like my party looking bad. But to resolve it by depriving people unfairly of their power, would be beneath us, in my opinion. I do not believe in winning at all costs, because that just leads to what happened to the Republicans. That party doesn’t even know or recognize itself anymore. It’s hardly what I want to come to pass for my party.

    David R. Remer-
    That system endured for over sixty years before the Civil War. Once that was over, though, it managed to hang around for over 140. One Civil War in over 200 years of history might be one too many, but it’s much fewer than many countries.

    Posted by: Stephen Daugherty at October 18, 2007 09:39 AM
    Comment #236399

    Dan-
    Yes, 523 requests, which they have repeated again and again, sometimes in the same year. If they really believed in the accumulation standard, why repeat it if all you have to do is submit it once to reach the threshold?

    When folks talk of reinterpretations, they typically have the first interpretations preceding the second, rather than the other way around. There is no evidence that states or governing officials have really taken this interpretation to heart in the first place. Where are the quotes that make the conclusion of accumulation and not contemperaneous standards necessary?

    You can’t appeal to originalism, to our current standard being a reinterpretation, if doesn’t precede that standard. Most of the evidence points to your interpretation being the radical re-interpretation instead.

    If you’re not ashamed to be radical, and not afraid of alienating people, why all this Kabuki?

    Just say: screw what the founding fathers wanted, what the states and the Congress have done our entire history, let’s do it this way because we think it’s best!

    You come from a political tradition, as it is, that has a bad habit of cloaking radicalism in the guise of rediscovered originalism, sometimes without even having such philosophies or ideologies present at the time in that form. It’s become a button some like to push in trying to get radical changes made, when they want to wrap themselves in the vague aura of forgotten history.

    The question is, though, can you justify all this in accordance with our system of law, as things are really done? Or do you just want your way?

    Posted by: Stephen Daugherty at October 18, 2007 10:07 AM
    Comment #236405
    Stephen Daugherty wrote: d.a.n- Let me set you straight on something. I know you believe that I believe in all out partisan warfare.

    Why would anyone think that ? …

    Stephen Daugherty wrote:
    The Republicans have the choice, which I gladly let them have, of doing scuzzy things so they can make the Democrats look bad, like defaming small children, vetoing healthcare, blockading House legislation through cloture votes that people really want, and I have the choice to show everybody what they’re doing.

    Posted by: d.a.n at October 18, 2007 10:53 AM
    Comment #236411
    Stephen Daugherty wrote: Just say: screw what the founding fathers wanted, what the states and the Congress have done our entire history, let’s do it this way because we think it’s best!
    Talk about
    Stephen Daugherty wrote: all this Kabuki?
    Stephen Daugherty wrote: Or do you just want your way?
    No, I want what we should all want, and I am just one of many that believe the direct and literal text of the Constitution should be obeyed (not just the literal meaning, but what can also be plausibly argued as the spirit-of-the-law too) until the Constitution is amended.

    Many others also disagree on the re-interpretation and the Supreme Court’s allowing Congress to veto the literal meaning.

    Eventually, enough states will hopefully get fed-up enough to finally all file enough same-subject amendments simultaneously. It will then be interesting to see if Do-Nothing Congress finally calls a convention, or finds some new creative re-interpretations to raise the bar even higher; finding new ways to make it difficult (or impossible) for states to ever make amendments. As the number (currently 523) of amendment applications grows (and another now being submitted by South Carolina), Congress looks increasingly obstructionist and in violation of Article V. I am just one of many that believe the direct and literal text of the Constitution should be obeyed until the Constitution is amended. Otherwise, the Constitution is no longer the Supreme Law of the Land.

    Posted by: d.a.n at October 18, 2007 11:32 AM
    Comment #236418

    Dan-
    Literal intepretations? More like circular arguments. You essentially argue “Don’t question my interpretation, because my interpretation is the proper interpretation of the constitution.”

    WHY is it the proper interpretation? Arguing a conclusion from your conclusion is a circular argument, a fallacy of begging the question.

    That’s not the only fallacy offered. You go with an Ad Hominem fallacy, claiming that people like myself are either blind partisan fools or liars. You go with appeals to fear, telling people that all is lost if they don’t accept your interpretation.

    Where are the words of the framers, confirming your theory? Where is the practice of more than two-hundred years of American constitutional law? Where is the evidence of the state governments, arguably the interested parties in this case, going to court with this interpretation? Bash me, argue in circles, you still haven’t produced the required evidence.

    Winning this argument as I have put it forward now is ridiculously simple, though: find the fricking evidence. Back your claim up.

    As for Partisan Warfare? I know you love your little catch phrases, but sometimes it is a good thing for people to be called to account for their actions by the other side. That’s part of the whole point of Democracy: the watchers watch each other. If done right, it encourages both sides to moderate their own behavior, police their own, in order to avoid the political losses that come with such revelations. There more well known the problems, the closer we are to solving them. Part of the reason the Republicans lasted this long was that few people were aware of just how radical they really were.

    Posted by: Stephen Daugherty at October 18, 2007 12:58 PM
    Comment #236422
    Stephen Daugherty wrote: d.a.n- Literal intepretations? More like circular arguments.
    Not true. The literal meaning of the words “whenever” and “amendments” in Article V are a very pausible arguement; one shared by many people.
    Stephen Daugherty wrote: d.a.n- You essentially argue “Don’t question my interpretation, because my interpretation is the proper interpretation of the constitution.”
    Not true. Many aside from myself think the proper interpretation should be the literal meaning of the words “whenever” and “amendments” in Article V.
    Stephen Daugherty wrote: WHY is it the proper interpretation?
    Because the literal meaning is quite clear.
    Stephen Daugherty wrote: Arguing a conclusion from your conclusion is a circular argument, a fallacy of begging the question.
    Not true. The literal meaning is quite clear.
    Stephen Daugherty wrote: That’s not the only fallacy offered. You go with an Ad Hominem fallacy, claiming that people like myself are either blind partisan fools or liars.
    Not true. Where did I call you a liar or partisan fool? Only one’s self can truly make a fool of themself.
    Stephen Daugherty wrote: You go with appeals to fear, telling people that all is lost if they don’t accept your interpretation.
    Not true. Where did I say all is lost?
    Stephen Daugherty wrote: Where are the words of the framers, confirming your theory?
    Right there in Article V, which states “whenever” and “amendments”. It does not state same-subject or simultaneously.
    Stephen Daugherty wrote: Where is the practice of more than two-hundred years of American constitutional law?
    Don’t need to practice law to understand the meaning of words “whenever” and “amendments” (plural).
    Stephen Daugherty wrote: Where is the evidence of the state governments, arguably the interested parties in this case, going to court with this interpretation?
    States have made 523 amendment applications. No states (that I know of) have sued over that yet, but it would not surprise me if that happens later.

    As for law suits, there were already two law suits with regard to Congress and Article V. There will probably be more.

    Stephen Daugherty wrote: Bash me, argue in circles, you still haven’t produced the required evidence.
    Bash? Hhmmmmm … whose doing the bashing and arguing in circles?

    My argument is quite simple. It is based on the clear and literal text of Article V. The key words are “whenever” and “amendments”

      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,…

    Stephen Daugherty wrote: Winning this argument as I have put it forward now is ridiculously simple, though: find the fricking evidence. Back your claim up.
    Heil!

    I have. The evidence is right there in Article V of the Constitution. It states “whenever” and “amendments”. It couldn’t be much clearer. Just because Congress ignores it does not justify it. There’s no need for anything else. But, all states should re-submit all amendment applications again simultaneously, since Congress keeps raisng the bar. Eventually, Congress won’t be able to move the bar any higher.

    Not “whenever contemporaneously” and not “same-subject amendments” (as Do-Nothing Congress conveniently re-interprets it).
    The text is quite clear. And Do-Nothing Congress’ conflict of interest is quite clear too. Congress does not want an Article V Convention, because all states would then have an opportunity to submit (simultaneously) lots of badly-needed, common-sense, no-brainer reforms (e.g. campaign finance reform, term-limits, balanced budget, etc., etc., etc.).

    Stephen Daugherty wrote: As for Partisan Warfare? I know you love your little catch phrases, …
    There’s no need for personal attacks. Partisan-warfare is a huge distraction from the nation’s problems. How can anyone defend partisan-warfare? Especially when it distracts from the nation’s problems?
    Stephen Daugherty wrote:… , but sometimes it is a good thing for people to be called to account for their actions by the other side.
    Other side? Called to account?
    Stephen Daugherty wrote: Part of the reason the Republicans lasted this long was that few people were aware of just how radical they really were.
    Nothing partisan about that statement, eh? Speaking of radical …
    Stephen Daugherty wrote: The Republicans have the choice, which I gladly let them have, of doing scuzzy things so they can make the Democrats look bad …
    Make the Democrats look bad?

    The fact is, neither party’s politicians need much help looking bad, as evidenced by Congress’ dismal 11% to 18% approval ratings (all time lows). The problem is too many irresponsible incumbent politicians in BOTH parties, and the partisan-warfare is a grand distraction from Congress’ malfeasance, and the nation’s problems that are growing dangerously in number and severity. Solving problems takes a back seat to it. We did not get where we are now in only the last 8 years. BOTH parties have had a majority twice since 1954. Still, in the last 30 years, a number of things have gotten worse … widening the disparity trend.

    Posted by: d.a.n at October 18, 2007 02:59 PM
    Comment #236438

    Stephen,

    You said, “Winning this argument as I have put it forward now is ridiculously simple, though: find the fricking evidence. Back your claim up.”

    I think that I have tried this route on multiple occasions to have my evidence dismissed by you. What I ask to you is can you provide any legal precedent for convention calling standard to be contemporaneous? As I have mentioned before, I don’t have a major horse in this debate, but I can’t find any that supports your claim, and I have found quite a bit that seems to logically support that of your opponents.

    Also, you said, “You see, I’m not interested in taking every bit of power away from my enemies.”

    You meant opposition right?

    Dan,

    For what it’s worth, my reading of Article V says that the only Ammendment that can’t be offered is one that changes the balance of power in the Senate without unanimous support of all states an event unlikely to happen.

    From article V:
    “…and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

    Posted by: Rob at October 18, 2007 05:17 PM
    Comment #236444

    Rob,
    Yes. Good point.

    and that no state, without its consent, shall be deprived of its equal suffrage in the Senate
    Yes, changing the numbers in the Senate is not something I’d pursue anyway. We have much higher priorities. It was never my intention to have it as an amendment. I merely wanted to point out that a lack of proportional representation (based on population) may help explain why most of the populous states get the least pork-barrel per-capita (see chart for 2005). But, again, I’m really not interested in changing the struture of the Senate and realize that the least populous states are very unlikely to allow that to change.

    Posted by: d.a.n at October 18, 2007 06:35 PM
    Comment #236451

    Rob-
    If I’m not willing to take political power even from my enemies, you could reasonably assume that I extend the same courtesy to friendly rivals.

    As for evidence for my interpretation?

    Over five hundred calls for a convention, yet no documented protest at the accumulation not being heeded. Logically speaking, the states could have made the call just once apiece, and would have been confident in the fact that eventually the number would rise to the necessary level.

    Instead, every state has repeated their calls. Without protests against the requirement, there little to suggest that the repetition is the product of frustration, simply the failure to get enough votes together at once. The legal precedent? The only convention ever called was called and held within a year. If people in that time didn’t beat around the bush, there’s a reasonable argument that they didn’t intend future generations to take that long to call a convention.

    Dan-
    Calling it literal meaning is an exercise in insisting on the meaning you want without having to bother with little things like external information.

    The Constitution was written, considered, and is followed in context. By itself, it’s meaningless. External information and evidence is necessary to get at what the plain meaning of the constitution is. Why? Because your modern, literal interpretation reflects your understanding of those words, not necessarily theirs.

    Without context, literal interpretation can become a game of semantics, because any interpretation requires one to set definitions, and differences in definition and understanding of the terms and phrases can change.

    Regardless of what literal interpretation you read from the words, the real question is what the framers meant, and you can’t simply deduce that from your own interpretation of the words.

    So far, I haven’t seen one piece of evidence of your interpretation in practice. If your theory was reflective of the original intention of the framers, we would not see the complete absence of evidence for such an interpretation.

    Posted by: Stephen Daugherty at October 18, 2007 07:30 PM
    Comment #236456
    Stephen wrote: Dan- Calling it literal meaning is an exercise in insisting on the meaning you want without having to bother with little things like external information.
    So, what part of “whenever” and “amendments” (plural) to you not understand?

    Rob, good point.

    Stephen wrote:
    If I’m not willing to take political power even from my enemies,…
    Enemies ? No partisan warfare there, eh?

    Not “whenever contemporaneously”.
    Those two words together don’t make much sense.
    Not “same-subject amendments”.
    That has never been the contention.

    Stephen wrote:So far, I haven’t seen one piece of evidence of your interpretation in practice.
    As written in Federalist 85 by the author Alexander Hamilton, the author of Article V, the applications are a simple numeric count of states and no more. Not same-subject. Not contemporaneous.

    PRESCEDENT:
    Congress’ decision in the last law suit (Walker vs Members of Congress), was based on Coleman v Miller, 307 U.S. 433 (year 1939). Before this in FOUR rulings, the Supreme Court had specified in direct language that Congress must call an Article V Convention. However, in Coleman v Miller, 307 U.S. 433 (year 1939), the court gave Congress the exclusive control of the entire amendatory process, which included the right of Congress to have members of the state legislatures arrested by military force and compelled to “ratify” an amendment “proposed” by Congress.

    COURT RULING in Walker vs Members of Congress:
    The court made a ruling, under the Political Question Doctrine, that Congress could refuse to call an Article V Convention. However, not before the government admitted for the public record that the defendants in the lawsuit (each member of Congress) had violated federal criminal law in violation of their oath of office. Not before the government admitted the obligation of Congress to call a convention was “peremptory.”, and not before the government admitted a convention call is based on a numeric count of applying states, not same-subject amendments. This is public record.

    COMMON SENSE:

      Article V ofthe U.S. 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; provided that no amendment which may be made prior to the year one thousand eight hundred and eight [1808] 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.

    Stephen, much of your argument relies on the incorrect re-interpretation of Article V of the Constitution by Congress who has an extremely obvious conflict of interest.
    The fact is, if there is any re-interpretation happening, it is those that want to interpret the very simple and literal meaning of :

    • “whenever” as “whenever contemporaneous”

    • and “amendments” as “same-subject amendments”.

    The simple literal text (alone) of Article V of the Constitution is compelling.

    What is interesting is that those that those who pledged to uphold the Constitution have little wiggle-room for debate on the literal meaning of Article V, much less the spirit-of-the-law. After 523 requests for amendments by all 50 states, it starts to look a bit ridiculous. That is, unless you have a motivition (usually the IN-PARTY) to perpetuate the status quo. At any rate, the question is this: Is your Constitution being violated? I think the answer is yes. The IN-PARTY (naturally) may see it differently.

    I will let readers and other Americans decide, and encourage states to all re-submit their amendments in the hope that the sufficient simultaneous applications of enough (two-thirds of all states) amendment applications will finally convince Do-Nothing Congress to finally obey Article V of the Constitition.

    In the mean time, the nation’s most pressing problems are being ignored; being allowed to grow dangerously in number and severity.
    Especially by the IN-PARTY who always has nefarious reasons for a rosier-than-reality outlook.

    Posted by: d.a.n at October 18, 2007 09:45 PM
    Comment #236462

    Dan-
    Okay, what I don’t understand is how “whenever” requires your intepretation exclusively.
    Let’s say you’re right. Logically speaking one could stick to the contemporaneous standard,and still satisfy the logical condition.

    I looked at Federalist #85, and here’s a particularly relevant paragraph to that question:

    Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.

    The key word here is unite.

    There, we have that all important word: unite. To make as one. He’s talking about the states getting together to defend their interests.

    America did not become the United States by piecemeal, but instead by a united agreement, our constitution. Hamilton, defending that constitution not long after it’s authorship is talking about the states once again uniting to defend their interests.

    How does this square with an accumulative standard? You don’t have to unite states in order to do things your way. Everything can kind of drift along until it happens. That’s not what this framer is talking about here. He’s talking about the states triggering a convention together, united.

    Not enough? Well before, he says something like this:

    It is this that the national rulers, whenever nine States concur, will have no option upon the subject.

    Concur. “To act together to a common end or effect”. Another definition gives the temporal sense of the term: “to happen together.”

    You could semantically stretch “whenever” to fit any standard where you might reach a number equalling one-third of the states in question. however, the framer talking about this portion of the constitution talks in terms of uniting and concurring, which by common sense definitions represent common purpose, thought, and alliance at the same time.

    The context for article five is a common effort, a concurrent action of the states.

    As for the cases? First fact: He lost. Second Fact: Coleman Vs. Miller was basically the Supreme Court saying it couldn’t rule an amendment unconstitutional, that the carrying out of the Amendment process was up to Congress. You’re essentially saying two different things here: that Congress has authority, and that Congress must do things your way to fullfil it’s constitutional duty.

    Walker lost the case, and the Supreme Court had no desire to mess with it, so they let the other court’s decision stand.

    As for that right to have members of state legislators arrested by military force? I suppose you’re talking about the way the 13th, 14th, and 15th Amendments were passed. I’m afraid you’re failing to see the context there. I mean, these state legislatures had just risen in rebellion against the union, and this was part of the peace settlement. What concerns me personally, is that you accepted this argument at face value without duly considering what your source was essentially saying.

    There’s a danger in mainlining the views of advocates. It tend to prefer information to indoctrination. I’d rather watch Frontline than Bill Moyer’s NOW. I’d rather know relevant facts and issues and decide things from there than buy into some advocates view, only to find when I dig deeper that somebody didn’t do their homework, and that the dogma I’d been promoting had some ugly implications, future and past.

    The Irony is that you haven’t avoided the pitfalls of partisan warfare. You’ve just connected yourself to a different form.

    Posted by: Stephen Daugherty at October 19, 2007 12:01 AM
    Comment #236481
    Stephen wrote: d.a.n- Okay, what I don’t understand is how “whenever” requires your interpretation exclusively.
    It’s not just my interpretation, and there is no need to resort to personal attacks.

    The literal meaning is always the best place to start.
    Few would say “whenever two-thirds” and then re-interpret it to mean “whenever two-thirds contemporaneously”.
    Few would say “amendments” and then re-interpret it to mean “same-subject amendments”.
    Such a re-interpretation (not just one, but two) makes the requirements too onerous; too difficult.
    And it actually requires new words and phases (e.g. contemporaneous and same-subject) that do not currently exist.

    Some use the excuse of precedent that a Convention has never occurred.
    Of course it hasn’t.
    How can?
    It can’t occur with these re-interpretations that set the bar so high; ridiculously high.
    Did the states understand this all along?
    No they did not.
    There were 4 times prior to Coleman v Miller, 307 U.S. 433 (year 1939) that the Supreme Court specified that Congress must call an Article V Convention.

    But after those 4 times, as a result of the new re-interpretation, 523 amendment applications were all a waste of time, despite 4 times having satisfied the two-thirds requirement (but not contemporaneously).

    Never mind that it took over 200 years to ratify the 27th Amendment.

    Stephen wrote: d.a.n- Calling it literal meaning is an exercise in insisting on the meaning you want without having to bother with little things like external information.
    Calling?

    So nothing can be interpreted literally?
    Never mind the direct, concise, and literal meaning?
    Never mind the 4 times prior to Coleman v Miller, 307 U.S. 433 (year 1939) in which the Supreme Court specified that Congress must call a convention?
    Never mind the obvious conflict of interest of those in Congress (who all swore to uphold the Constitution)?
    Never mind that none in Congress choose to err on the side of the literal meaning.

    So why would any state submit an amendment unless 33 other states will do the same simultaneously?
    It’s a waste of time.
    The previous 523 (567 all together including 44 rescissions; 26 by the state of Louisiana) applications are all a waste of time unless 33 other states do the same simultaneously.
    It appears that the states have not understood all along about the re-interpretation.
    That “whenever” doesn’t really mean “whenever”? It actually means “contemporaneously” ?
    That “amendments” doesn’t really mean “amendments”? It actually means “same-subject amendments” ?

    I do not need to read into Article V new things that do not exist.
    That is what Congress does.
    Congress must read new words into the literal meaning to change the meaning.

    Stephen wrote:So far, I haven’t seen one piece of evidence of your interpretation in practice.
    The evidence is there. But it’s hard to see through blinders.

    The Supreme Court has specified 4 times prior to Coleman v Miller, 307 U.S. 433 (year 1939) that Congress must call a convention?
    And in Coleman v Miller, 307 U.S. 433 (year 1939), the Supreme Court weaseled out by falling back on the flimsy “Political Question Doctrine”.

    No where in Federalist 85, did Alexander Hamilton, the author of Article V, state or even imply that anything more than a simple numeric count of states was sufficient to call an Article V Convention. No where in Federalist 85 does it specify or imply “same-subject”.
    No where in Federalist 85 does it specify or imply “contemporaneous”.
    To draw that conclusion requires yet more new re-interpretations.

    Stephen Daugherty wrote: It is this that the national rulers, whenever nine States concur, will have no option upon the subject.
    That does not disqualify the literal meaning of “whenever” or “amendments”.
    Stephen Daugherty wrote: I looked at Federalist #85, and here’s a particularly relevant paragraph to that question:
      From Federalist #85: Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.
    That also does not disqualify the literal meaning of “whenever” or “amendments”.

    And the three-fourths is the requirement for ratification. Not calling an Article V Convention.

    The last sentence (“We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority”) is interesting.
    Since Congress has an obvious conflict of interest, the very thing Hamilton spoke of is exactly what we have today: a huge, bloated, over-reaching national government that is growing larger every day to nightmare proportions.

    Stephen Daugherty wrote: The Irony is that you haven’t avoided the pitfalls of partisan warfare. You’ve just connected yourself to a different form.
    AHHHhhhh … more personal attacks. A sure sign of frustration with a weak argument/position. Funny! Partisan warfare? Like these non-partisan jewels
    Stephen Daugherty wrote: If I’m not willing to take political power even from my enemies,…
    Stephen Daugherty wrote: … as I don’t like to hear people get down on my party, …
    Stephen Daugherty wrote: The most important part of the Democratic party is it’s approach to problems, not the platforms or issues.
    Stephen Daugherty wrote: The parties exists to serve our interests.
    Stephen Daugherty wrote: They [voters] should be allying with us [Democrats].
    Stephen Daugherty wrote: In my opinion, the proper people to run this party are the voters who elect Democrats.
    Stephen Daugherty wrote: The Republicans have the choice, which I gladly let them have, of doing scuzzy things so they can make the Democrats look bad …
    And lastly, to quote Doug Langworthy …
    Doug Langworthy wrote: Minus his anti-anything-Democrat musings, Stephen [Daugherty] is …

    PRECEDENT:
    Congress’ decision in the last law suit (Walker vs Members of Congress), was based on Coleman v Miller, 307 U.S. 433 (year 1939). Before this in FOUR rulings, the Supreme Court had specified in direct language that Congress must call an Article V Convention. However, in Coleman v Miller, 307 U.S. 433 (year 1939), the court gave Congress the exclusive control of the entire amendatory process, which included the right of Congress to have members of the state legislatures arrested by military force and compelled to “ratify” an amendment “proposed” by Congress.

    COURT RULING in Walker vs Members of Congress:
    The court made a ruling, under the Political Question Doctrine, that Congress could refuse to call an Article V Convention. However, not before the government admitted for the public record that the defendants in the lawsuit (each member of Congress) had violated federal criminal law in violation of their oath of office. Not before the government admitted the obligation of Congress to call a convention was “peremptory.”, and not before the government admitted a convention call is based on a numeric count of applying states, not same-subject amendments. This is public record.

    COMMON SENSE:

      Article V of the U.S. 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; provided that no amendment which may be made prior to the year one thousand eight hundred and eight [1808] 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.

    LITERAL MEANING of ARTICLE V:
    The simple literal text (alone) of Article V of the Constitution is compelling.
    Arguments against the literal meaning of Article V are very weak.
    Thus, those arguments seek out weak inferences and new re-interpretations.
    There is nothing in Federalist #85 that implies “same-subject” or “contemporaneous”.
    Those are merely more new re-interpretations.
    The fact is, if there is any re-interpretation happening, it is those that want to interpret the very simple and literal meaning of :

    • “whenever” as “whenever contemporaneous”

    • and “amendments” as “same-subject amendments”.

    CONFLICT OF INTEREST:
    Lastly, something very difficult to ignore, is Congress’ obvious conflict of interest. They all see the writing on the wall. They know if a convention is called, there may amendments for term-limits, campaign finance reform, balanced-budget, etc. Congress does not want that, nor anything that will reduce their power, opportunities for self-gain, or the security of their cu$hy, coveted incumbencies.

    What is interesting is that those in Congress that pledged to uphold the Constitution have little wiggle-room for debate on the literal meaning of Article V, much less the spirit-of-the-law. Thus, the suspicious re-interpretations. And after 523 amendment applications by all 50 states, it starts to look a bit ridiculous, and further highlights Congress’ obvious conflict of interest. No wonder Congress has a dismal 11% to 18% approval rating. No wonder they resort to suspicious re-interpretations to cling to power.

    At any rate, the question is this: Is Article V of the U.S. Constitution being violated?

    I think the answer is yes.
    Congress (and most certainly the IN-PARTY) may see it differently.
    Anyone that wants to protect the status quo may see it differently.
    But to see it differently requires a re-interpretation of the literal meaning from “whenever” to “contemporaneously”, and from “amendments” to “same-subject amendments”.

    I will let readers and other Americans decide, and encourage states to all re-submit their amendments in the hope that the sufficient simultaneous applications of enough (two-thirds of all states) amendment applications will finally convince Do-Nothing Congress to finally obey Article V of the Constitution.

    In the mean time, the nation’s most pressing problems are being ignored; being allowed to grow dangerously in number and severity. Especially by the IN-PARTY which has nefarious reasons for a rosier-than-reality outlooks, and Congress as a whole that has an obvious conflict of interest.

    Posted by: d.a.n at October 19, 2007 10:58 AM
    Comment #236482

    Stephen,

    “The legal precedent? The only convention ever called was called and held within a year. If people in that time didn’t beat around the bush, there’s a reasonable argument that they didn’t intend future generations to take that long to call a convention.”

    Is this legal precedent? Is there a case cite for this?

    Posted by: Rob at October 19, 2007 11:22 AM
    Comment #236484

    Rob-
    Well, if we’re talking legal precedent, Coleman vs. Miller would be it. Essentially, Congress has authority over the process. But that’s not the only kind of things that a lawyer or judge might consider. I think the quotations from the Federalist clearly demonstrate what the spirit of the law is, and the quick turnaround on the one and only convention we’ve had shows what the customary approach was in that time.

    Dan-
    First, I’ve never come out in favor of same-subject amendment things. I think that’s the shakiest part. That said, you keep on interpreting “Whenever”, a conditional statement on the basis of what you think the trigger means. That’s the real point of dispute here, much as you’d like to think it’s all just me trying to dodge “whenever”

    I’ve provided indications from the words of one of the Constitution’s earliest defenders indicating that this article was supposed to allow states to unite to protect their interests. Uniting is by definition something you do together, all at once. Same thing when you concur with somebody. For something or somebody to concur is for they or it to run together. In that light, the whole point is that it’s all done at once time, the calls part of a concurrent movement on the part of the states towards such a convention.

    By the way, I think you’re misreading the precedents: that was four times where the courts reaffirmed the necessity of calling a convention whenever the threshold was met. That wasn’t the courts telling them they had to call a convention. That was the courts saying they would have to do so if the threshold was met.

    You say it puts the threshold ridiculously high, but the whole point of the paragraph that we both quoted from was to defend that high standard as not being ridiculous. He was saying that he was quite sure that if the states felt their interests were being compromised badly enough, they would call the convention.

    Nobody would wast their time on repeated convention calls if they believed the standard was accumulative. They could leave the sleeping dog to lie, and when they reached the number, they could bark all about it. The states have behaved for over two hundred years as if they had to call for the convention all at once. The person the framers gave the assignment of defending that article talks about states uniting, states concurring, getting altogther to defend their interests. Morever, as much as he clearly states that “whenever” doesn’t give Congress the choice on the matter, he’s also clearly defending a standard where states would have to apply together.

    Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.

    The argument against this article was that it was too difficult to get people to amend the constitution, if these were the requirements His answer? No, he said, however difficult it would be to unite people behind such a convention or such amendments, he did not believe they would fail to look after there own interests.

    Yours is the reinterpretation, prompted by the very same fears that Hamilton was trying to allay. If you read the actual paragraph, instead of just concentrating on the part regarding the requirement on Congress, you’d see how similar your argument against such a “ridiculously high threshold” is to the argument he was responding against.

    That’s the irony in all this. The further irony is that you’re not even acknowledging one of the framer’s own words. You’re looking to confirm your own biases.

    Posted by: Stephen Daugherty at October 19, 2007 12:35 PM
    Comment #236486
    Stephen Daugherty wrote: Well, if we’re talking legal precedent, Coleman vs. Miller would be it.
    Never mind the 4 times prior to Coleman v Miller, 307 U.S. 433 (year 1939) in which the Supreme Court specified that Congress must call a convention.
    Stephen Daugherty wrote: Essentially, Congress has authority over the process.
    So some believe. Many disagree.
    Stephen Daugherty wrote: I think the quotations from the Federalist clearly demonstrate what the spirit of the law is, and the quick turnaround on the one and only convention we’ve had shows what the customary approach was in that time.
    Nothing in Federalist #85 changes the meaning of “whenever” or “amendments”, nor implies same-subject or contemporaneously.
    Stephen Daugherty wrote: d.a.n- First, I’ve never come out in favor of same-subject amendment things.
    That’s good, because that has already occured 4 times.
    Stephen Daugherty wrote: I think that’s the shakiest part.
    Only if “whenever” is re-interpreted to “whenever contemporaneously”.
    Stephen Daugherty wrote: That said, you keep on interpreting “Whenever”, a conditional statement on the basis of what you think the trigger means.
    Not that alone. There are also 4 times prior to Coleman v Miller, 307 U.S. 433 (year 1939) in which the Supreme Court specified that Congress must call a convention.

    Also, the Supreme Court’s ruling did not say Congress was not already violating Article V. The Supreme Court refused to hear Walker vs Members of Congress by weaseling out using the Political Question Doctrine, letting Congress ignore Article V Convention. However, not before the government admitted for the public record that the defendants in the lawsuit (each member of Congress) had violated federal criminal law in violation of their oath of office. Not before the government admitted the obligation of Congress to call a convention was “peremptory.”, and not before the government admitted a convention call is based on a numeric count of applying states, not same-subject amendments.

    Stephen Daugherty wrote: That’s the real point of dispute here, much as you’d like to think it’s all just me trying to dodge “whenever”.
    Some agree with you. Some don’t.

    And it’s not hard to understand Congress’ interpretation.
    Never mind that Do-Nothing Congress has an obvious conflict of interest.
    Just because the Supreme Court allowed Congress to ignore Article V doesn’t mean it is right and just, and still ignores many other issues aside from the literal meaning of “whenever” and “amendments”, such as the 4 times prior to Coleman v Miller, 307 U.S. 433 (year 1939), and the government acknowledging after Walker vs Members of Congress that Congress was violating Article V.

    Stephen Daugherty wrote: I’ve provided indications from the words of one of the Constitution’s earliest defenders indicating that this article was supposed to allow states to unite to protect their interests. Uniting is by definition something you do together, all at once. Same thing when you concur with somebody. For something or somebody to concur is for they or it to run together. In that light, the whole point is that it’s all done at once time, the calls part of a concurrent movement on the part of the states towards such a convention.
    That proves nothing at all. Nothing in Federalist #85 changes the meaning of “whenever” or “amendments”, nor implies same-subject or contemporaneously.
    Stephen Daugherty wrote: By the way, I think you’re misreading the precedents: that was four times where the courts reaffirmed the necessity of calling a convention whenever the threshold was met. That wasn’t the courts telling them they had to call a convention. That was the courts saying they would have to do so if the threshold was met.
    That’s another convenient interpretation. Those rulings did not address “same-subject” or “contemporaneousness”.
    Stephen Daugherty wrote: You say it puts the threshold ridiculously high, but the whole point of the paragraph that we both quoted from was to defend that high standard as not being ridiculous. He was saying that he was quite sure that if the states felt their interests were being compromised badly enough, they would call the convention.
    Stephen Daugherty wrote: Nobody would waste their time on repeated convention calls if they believed the standard was accumulative.
    Nonsense. Nobody would waste their time submitting amendment applications if they knew 33 other states must also submit same-subject amendments simultaneously.
    Stephen Daugherty wrote: They could leave the sleeping dog to lie, and when they reached the number, they could bark all about it.
    Many are not aware that the two-thirds limit has already been reached four times.
    Stephen Daugherty wrote: The states have behaved for over two hundred years as if they had to call for the convention all at once.
    Not true. Many are not aware that the two-thirds limit has already been reached four times.
    Stephen Daugherty wrote: The person the framers gave the assignment of defending that article talks about states uniting, states concurring, getting altogther to defend their interests. Morever, as much as he clearly states that “whenever” doesn’t give Congress the choice on the matter, he’s also clearly defending a standard where states would have to apply together.
    Nothing in Federalist papers implies that “whenever” or “amendments” meant “contemporaneous” or same-subject.
    Stephen Daugherty wrote: Yours is the reinterpretation, prompted by the very same fears that Hamilton was trying to allay.
    Nonsense. Nothing in Federalist #85 changes the meaning of “whenever” or “amendments”, nor implies same-subject or contemporaneously. If Hamilton saw what was happening now (with 523 amemdment requests, and Congress’ obvious conflict of interest, and the rampant corruption in Congress, he’d probably see that he should have made it explicitly clear that amendments did not have to be contemporaneous or same-subject.
    Stephen Daugherty wrote: If you read the actual paragraph,
    I have many times. Nothing in Federalist #85 changes the meaning of “whenever” or “amendments”, nor implies same-subject or contemporaneously. To say it even implies it anywhere is quite a ridiculous stretch. Too bad Hamilton isn’t around to clear this up. I think he would side with the literal meanings.
    Stephen Daugherty wrote: … instead of just concentrating on the part regarding the requirement on Congress, you’d see how similar your argument against such a “ridiculously high threshold” is to the argument he was responding against.
    Nonsense. The threshold was simply “whenever” and “two-thirds”. That’s all. Any other re-interpretation is suspicious and vastly different than the literal meaning.
    Stephen Daugherty wrote: That’s the irony in all this.
    There’s no irony. There is nothing in Federalist #85 that supports that conclusion. Claiming it does is a stretch; another re-interpretation.
    Stephen Daugherty wrote: The further irony is that you’re not even acknowledging one of the framer’s own words. You’re looking to confirm your own biases.
    My bias is simply that the literal meaning of Article V of the Constitution should be obeyed until it is amended.

    Many agree on this simple point. There is no precedent since there’s only been the first convention only.

    Stephen Daugherty wrote: You’re looking to confirm your own biases.
    More personal attacks, eh?

    Biases? Like these

  • Stephen Daugherty wrote: If I’m not willing to take political power even from my enemies, …

  • Stephen Daugherty wrote: … as I don’t like to hear people get down on my party, …

  • Stephen Daugherty wrote: The most important part of the Democratic party is it’s approach to problems, not the platforms or issues.

  • Stephen Daugherty wrote: The parties exists to serve our interests.

  • Stephen Daugherty wrote: They [voters] should be allying with us [Democrats].

  • Stephen Daugherty wrote: In my opinion, the proper people to run this party are the voters who elect Democrats.

  • Stephen Daugherty wrote: It shouldn’t seem funny to you that I come to my party’s defense,…

  • Stephen Daugherty wrote: How many people curse the green party for George W. Bush getting elected?

  • Stephen Daugherty wrote: If third parties can’t win offices, what good are they to the voter?

  • Stephen Daugherty wrote: If you want to badmouth us [Democrats] …

  • Stephen Daugherty wrote: I’ve been rather cross about your tendency to call the new congress a do-nothing congress …

  • Stephen Daugherty wrote: The Republicans have the choice, which I gladly let them have, of doing scuzzy things so they can make the Democrats look bad …
  • At any rate, the mock Article V Convention will be interesting. It will raise awareness to the fact that Congress has not called a convention despite 523 amendment applications by all 50 states.

    University of Virginia professor Larry Sabato, with the assistance of Supreme Court Justice Samuel Alito, 1996 presidential nominee Bob Dole and 1984 vice presidential nominee Geraldine Ferraro, holding a mock Constitutional convention later this month is a result of an growing number of people alarmed at the growing dysfunction and unfairness of our political system. Article V was the intended solution, to solve and restore the equity for ordinary citizens. That is at the core of our democratic society. We must revise the Constitution, the document that guides our political process, for until some of its outmoded provisions are reformed, we will only have more of the same, more corruption and more dysfunction.

    The original framers fully expected the Constitution to be regularly revised by succeeding generations to reflect the country’s changing needs. But Congress, who has an obvious conflict of interest is denying Americans this right, despite 523 amendment requests by all 50 states. Apart from the ten amendments in the Bill of Rights, it has only been amended 17 times in 220 years. Today, partisan gridlock, partisan-warfare, corruption, and big-money influence dominates the bloated, do-nothing federal government. A mere 17 percent of voters elect a majority of senators. The presidency has assumed unprecedented and unintended powers. Politicians spend as much (or more) time campaigning for office as they do working. The average American feels more and more disconnected from the political process. 40% to 50% don’t vote at all. Most don’t know their senators and representatives, much less their voting records. Hopefully, this mock Article V Convention will raise awareness and question why Congress has not yet called a convention, despite the requirements of Article V having already been met.

    Posted by: d.a.n at October 19, 2007 02:59 PM
    Comment #236491

    Dan-
    Beautiful. I hand you a Federalist, defending the constitution from its detractors, essentially saying that their argument that the requisite uniting of the two thirds of the several states was bull, and you tell me Federalist #85 says nothing that contradicts your claim.

    I got news for you: if you’re looking for original intentions, there they are. You don’t get more original than that. If he was really aiming to reassure people about Article V and your interpretation was his, he could have reassured the audience that eventually the numbers would accumulate to call a convention.

    Instead, he’s reassuring them that the difficulty in getting two thirds of the several states to agree on a convention is not an unsurmountable barrier to the calling of a convention.

    You’re insisting on going by the literal text. Trouble is, your idea of the literal text is biased by your politics. That’s the whole trouble with literalism, originalism, and all these other notions: all too often, people just read in their own beliefs, and call that a literal reading.

    There is nothing so inane as law interpreted without context or reference to the real world. It is in this way that corruption often seeps into the system as people play semantics with the words to get what they want. You keep on pounding on the “whenever” conditional, failing to take into account that the real argument is what the conditon of “the application of two thirds of the several states” requires to be met.

    From the very start, the standard has been a united call, that the states are doing this altogether. If two thirds of the “several” states of our day and age, namely 34 States, decided that a convention was warranted and pushed for it together, I think then you could appeal to the Supreme Court and say that Congress has failed.

    You have no legal grounding for your claims; the courts denied your argument, and the Supremes didn’t see fit to contradict the lower courts. Alexander Hamilton, working to explain the article, talks about states uniting to trigger it, concurring. This phrasing strongly favors a picture of people acting in concert, efforts made in unison, in concert. He assures people that the difficult standard of getting nine or ten states together to call a convention is not too onerous to allow the states to defend their turf with it. Why the hell is he making this kind of argument, about uniting, about difficultly high standards not being too much, if he’s talking about an accumulative standard?

    Why would his fellow Federalists permit him to make this kind of argument, explaining things in terms of a contemperaneous standard, if his argument wasn’t representative of what they all felt? Why would supporters of the constitution let such a misinterpretation become lodged in the public mind so soon?

    Or maybe it’s not a misinterpretation. Maybe your literal interpretation is. Take it from somebody with a touch of autism: literal isn’t always right. You keep on assuming that anybody who reads the text itself should agree with your conclusion that two thirds of the several states should mean two thirds at any time in the future, rather than two thirds together. Unfortunately for your argument, Hamilton talks about a united two thirds, not an eventual gathering of calls from two thirds of the states.

    Your whole point is that yours is the original interpretation, the correct one. Yet Hamilton acts as if it does not exist in his time. Why would that be?

    It’s pointless to argue original intentions straight from the document. The document does not intend things, it is the shaped instrument of somebody’s intentions. Because nobody scribbled their complete guildlines for interpreting the document there, we have to rely on external sources. If you were right, Hamilton would be talking about accumulation, rather than states uniting and concurring.

    Posted by: Stephen Daugherty at October 19, 2007 05:03 PM
    Comment #236498
    Stephen Daugherty wrote: d.a.n- Beautiful. I hand you a Federalist, defending the constitution from its detractors, essentially saying that their argument that the requisite uniting of the two thirds of the several states was bull, and you tell me Federalist #85 says nothing that contradicts your claim.
    False. I never said Federalist # 85 was bull.

    There is nothing in Federalist # 85 that supports or implies “same-subject” and/or “contemporaneous” for Article V.

    Stephen Daugherty wrote: I got news for you: if you’re looking for original intentions, there they are.
    Yes, the Federalist papers were to support and explain the Constitution.

    But there is nothing in Federalist # 85 that supports or implies “same-subject” and/or “contemporaneous” for Article V.

    Stephen Daugherty wrote: You don’t get more original than that.
    Originality is not the issue.

    There is nothing in Federalist # 85 that supports or implies “same-subject” and/or “contemporaneous” for Article V.

    Stephen Daugherty wrote: If he was really aiming to reassure people about Article V and your interpretation was his, he could have reassured the audience that eventually the numbers would accumulate to call a convention.
    There is nothing in Federalist # 85 that supports or implies “same-subject” and/or “contemporaneous” for Article V.

    Article V is very clear. The direct and literal meaning is very clear. To interpret as Congress has requires “whenever” to be re-interpreted as “whenever contemporaneously” and/or “amendments” as “same-sujbect amendments”.

    Stephen Daugherty wrote: Instead, he’s reassuring them that the difficulty in getting two thirds of the several states to agree on a convention is not an unsurmountable barrier to the calling of a convention.
    Two thirds of the states already have submitted same-subject amendments on 4 occasions. The courts have never ruled that “amendments” was to be interpreted as “same-subject amendemnts”.
    Stephen Daugherty wrote: You’re insisting on going by the literal text.
    That’s right. And on the spirit-of-the-law.
    Stephen Daugherty wrote: Trouble is, your idea of the literal text is biased by your politics.
    Not true. There’s no need to resort to personal attacks.

    The literal meaning is sufficient.
    I think if Hamilton was alive today, and saw the bloated, Do-Nothing Congress of today, he would regret not explicity stating amendments did not have to be same-subject or contemporaneous.

    Stephen Daugherty wrote: That’s the whole trouble with literalism, originalism, and all these other notions: all too often, people just read in their own beliefs, and call that a literal reading.
    Nonsense. The problem is the re-interpretation for nefarious reasons. Congress has an obvious conflict of interest.
    Stephen Daugherty wrote: There is nothing so inane as law interpreted without context or reference to the real world.
    There is nothing so inane as re-interpreting the meaning of words to something different, such as the re-interpretation of “whenever” to “whenever contemporaneously”, and/or “amendments” as “same-sujbect amendments”.
    Stephen Daugherty wrote: It is in this way that corruption often seeps into the system as people play semantics with the words to get what they want.
    Re-interpreting the clear and literal meaning is how a corrupt Congress can usurp Article V; violating their pledge to uphold the Constitution.
    Stephen Daugherty wrote: You keep on pounding on the “whenever” conditional, failing to take into account that the real argument is what the conditon of “the application of two thirds of the several states” requires to be met.
    Two thirds of the states already have submitted same-subject amendments on 4 occasions.
    Stephen Daugherty wrote: From the very start, the standard has been a united call, that the states are doing this altogether.
    There is nothing anywhere that states or implies “same-subject” and/or “contemporaneous” in Article V. The government has already admitted to a violaion of Article V.
    Stephen Daugherty wrote: If two thirds of the “several” states of our day and age, namely 34 States, decided that a convention was warranted and pushed for it together, I think then you could appeal to the Supreme Court and say that Congress has failed.
    Two thirds of the states already have submitted same-subject amendments on 4 occasions, and the Supreme Court weaseled out of it based on the “Political Question Doctrine”. The government later admitted that Article V was being violated.
    Stephen Daugherty wrote: You have no legal grounding for your claims; the courts denied your argument, and the Supremes didn’t see fit to contradict the lower courts.
    Not true. The Supreme Court weaseled out of it based on the “Political Question Doctrine”. However, not before the government admitted for the public record that the defendants in the lawsuit (each member of Congress) had violated federal criminal law in violation of their oath of office. Not before the government admitted the obligation of Congress to call a convention was “peremptory.”, and not before the government admitted a convention call is based on a numeric count of applying states, not same-subject amendments. This is public record.
    Stephen Daugherty wrote: Alexander Hamilton, working to explain the article, talks about states uniting to trigger it, concurring.
    Nothing Alexander Hamilton wrote supports or implies “same-subject” and/or “contemporaneous” in Article V.
    Stephen Daugherty wrote: This phrasing strongly favors a picture of people acting in concert, efforts made in unison, in concert.
    Not true. “whenever” does not mean “contemporaneously”, and “amendents” does not mean “same-subject amendments”.
    Stephen Daugherty wrote: He assures people that the difficult standard of getting nine or ten states together to call a convention is not too onerous to allow the states to defend their turf with it.
    There is nothing anywhere that states or implies “same-subject” and/or “contemporaneous” in Article V.
    Stephen Daugherty wrote: Why the hell is he making this kind of argument, about uniting, about difficultly high standards not being too much, if he’s talking about an accumulative standard?
    There is nothing anywhere that states or implies “same-subject” and/or “contemporaneous” in Article V. “whenever” does not mean “contemporaneously”, and “amendents” does not mean “same-subject amendments”.
    Stephen Daugherty wrote: Why would his fellow Federalists permit him to make this kind of argument, explaining things in terms of a contemperaneous standard,
    False. There is nothing anywhere that states or implies “contemporaneous” in Article V.
    Stephen Daugherty wrote: … if his argument wasn’t representative of what they all felt? Why would supporters of the constitution let such a misinterpretation become lodged in the public mind so soon?
    They did not anticipate the weasels in Congress would somehow re-interpret “whenever” as “whenever contemporaneously” and “amendments” as “same-subject amendments”.
    Stephen Daugherty wrote: Or maybe it’s not a misinterpretation. Maybe your literal interpretation is.
    There is nothing complicated about “whenever” and “amendments” (plural).
    Stephen Daugherty wrote: Take it from somebody with a touch of autism: literal isn’t always right.
    Autism has nothing to do with Article V.
    Stephen Daugherty wrote: You keep on assuming that anybody who reads the text itself should agree with your conclusion that two thirds of the several states should mean two thirds at any time in the future, rather than two thirds together.
    People are free to have their own interpretations. But to interpret “whenever” as “whenever contemporaneously”, and/or “amendments” as “same-subject amendments” is no small difference. And until Article V is amended, it should be obeyed.
    Stephen Daugherty wrote: Unfortunately for your argument, Hamilton talks about a united two thirds, not an eventual gathering of calls from two thirds of the states.
    There is nothing anywhere that states or implies “same-subject” and/or “contemporaneous” in Article V.
    Stephen Daugherty wrote: Your whole point is that yours is the original interpretation, the correct one.
    Yes, that is what I believe.
    Stephen Daugherty wrote: Yet Hamilton acts as if it does not exist in his time. Why would that be?
    Hamilton is not acting any sort of way. He is dead. Perhaps that is why?

    Again, there is nothing anywhere that states or implies “same-subject” and/or “contemporaneous” in Article V.

    Stephen Daugherty wrote: It’s pointless to argue original intentions straight from the document.
    Not true. The language of the Constitution is very important.

    Otherwise, people will try to re-interpret it by inserting words that do not currently exist within it.
    And that is what Congress has done; re-interpreted Article V by ignoring the literal text. The meaning is clear and concise. To see it any other way requires more words to be inserted in it. It requires new words such as “whenever” as “whenever contemporaneously”, and “amendments” as “same-subject amendments”. Naturally, those new words change the meaning drastically. The also (conveniently) set the bar so high, an Article V Convention is next to impossible, as evidenced by the fact that none has occured despite 523 applications by all 50 states. I do not think that was the spirit of the law.

    Stephen Daugherty wrote: The document does not intend things, it is the shaped instrument of somebody’s intentions.
    The language is clear, and the meaning is clear. Congress’ re-interpretation requires new words for clarification. Until the literal meaning is amended, it should be obeyed.
    Stephen Daugherty wrote: Because nobody scribbled their complete guildlines for interpreting the document there, we have to rely on external sources.
    There’s a big difference between interpreting and inserting new words that vastly change the meaning, such as re-interpreting “whenever” as “whenever contemporaneously”, and/or “amendments” as “same-subject amendments”.
    Stephen Daugherty wrote: If you were right, Hamilton would be talking about accumulation, rather than states uniting and concurring.
    Not true. Hamilton stated “whenever” and “amendments”.

    He did not anticipate how Congress would cleverly weasel out of it by re-interpreting “whenever” as “whenever contemporaneously” and/or “amendments” as “same-subject amendments”. He would probably be appalled that Congress is getting away with it.

    Not “whenever contemporaneously”.
    The two are very different. I do not think that is what Alexander Hamilton meant, and there is nothing in the Federalist papers that states or implies “whenever” should be interpreted as “whenever contemporaneously”, and/or “amendments” should be interpreted as “same-subject amendments”.

    Sen. Glen McConnell pushing for an Article V Convention - 17-Oct-2007 - by Jack Hunter

      Once upon a time, when we actually had a U.S. Constitution that was still obeyed, honored, and followed by men sworn to uphold it, we had a pretty good system of government. The people of the states, acting through their elected representatives in Congress, could keep tabs on their elected leaders, making sure they didn’t overstep their governmental boundaries and actually did their jobs as defined clearly in the Constitution.
      This is not the system we live under today. Today, presidents can fight endless wars without any official declaration by Congress, and our federal government can declare de facto war on the country it is supposed to serve, simply by not doing its Constitutional duty of protecting America’s borders.

    Fear of Article V Convention

      There is one good reason to oppose an Article V convention—if you prefer the political leaning of the judiciary to that of the States. This is the only rationale reason under current circumstances. Conversely, those who favor vesting—or exercising that which is already vested—Constitutional power in the States or who prefer and trust their political leanings more than those of the judiciary should be among an Article V convention’s greatest advocates. They clearly have the most to gain. One thing is for certain. An Article V convention will produce political winners and political losers. It will be a monumental battle for authority and power in this country. It can reshape the future course of our nation, and the Constitution as we now know it. It seems to have predictable and persuasive potential for favoring states rights and the more conservative state agendas. It is practically speaking the only viable means of checking judicial activism. Richard Wirthlin, long-time political strategist and aid to President Ronald Reagan calls the Article V convention approach—as it relates to the issue of a federal marriage amendment—“cleaner and more manageable” and “somewhat more likely to succeed”. It behooves all scholars, governmental officials, and citizens to reexamine long-held fears of a convention in light of current circumstances and identify those that are rationale or irrational, and those which are legal or inherently political in underpinning.

    Posted by: d.a.n at October 19, 2007 07:28 PM
    Comment #236501

    Dan-
    I confront you with real evidence that a framer said something to the effect of what I’ve been saying, and you start repeating your point over and over again.

    Well, if you want to spin around for a little bit with your circular argument, be my guest. Insisting on an argument, though, does not consistute proving it. I can prove in a framers own words that he saw the writing of this article in terms of several states getting together at the same time to call for a convention.

    I think I have the better position. And I don’t need a hundred repetitions of the same words to convince people of that.

    Posted by: Stephen Daugherty at October 19, 2007 10:40 PM
    Comment #236516

    Stephen,

    Interesting dilemma, I think I actually proposed Coleman v. Miller as the precedent for the accumulation standard the last time we spoke. As I reread the case law this morning, I realized that the reality is that there is no time standard for ratification save that determined by Congress. In Coleman, the courts have decided that they have no standing in the matter of ratification time periods.

    “Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three- fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.

    Upon rereading it this morning, I’ve become more convinced that the only standard that matter is that of the current Congress. Whether this be accumulation or contemporaneous is completely up to them. That is legally the Congress can decided to Call a Convention based on either standard. The accumulation standard was tested in Walker v United States and Walker v Members of United States Congress in the past three years, and the lower courts have referred back to Dillon and Coleman as the deciding law.

    As you are certainly right that the Congress has not called a Convention on the accumulation standard in the past and is unlikely to do so in the future, I agree that the any prompting of such a convention will likely be “contemporaneous”. Since there is no official standard for “contemporaneous” in Coleman. It is likely that Congress will have to decide what that means. With Senator Glenn McConnell calling a Convention on the topic of immigration, it may get an opportunity sooner rather than later, but I doubt it.

    For what it’s worth, I think that this is a topic worth pursuing a Constitutional Ammendment. I hope it will not become an execuse for xenophobic hand-wringing, but the topic of what constitutes citizenship in the United States was largely ignored in the orignial Constitution. It would be nice to have some Constitutional basis on who we are as Americans and how others not born here may become American.

    Posted by: Rob at October 20, 2007 11:47 AM
    Comment #236523
    Stephen Daugherty wrote: d.a.n- I confront you with real evidence that a framer said something to the effect of what I’ve been saying, and you start repeating your point over and over again.
    Right … Like no one else repeats themselves over and over?

    “Unite” does not equate to “same-subject” or “contemporaneous”.
    Those are re-interpretations that drastically change the original meaning.

    Here is what … Lee Jamison wrote: Stephen, … You are not “reading intent into” Hamilton’s words as even a wishful legal scholar might. You are making things up as a child might make up powers for his favorite superhero… The members of Congress who would stand in the way of this process are also making up powers for their favorite superheroes who, unfortunately, are themselves.
    Very well said. Again, I wish Hamilton was here today to see what the Do-Nothing Congress has become, because I think he would confirm that “whenever” was not supposed to be interpreted as “whenever contemporaneously”, and/or “amendments” was not supposed to be interpreted as “same-subject amendments”. These are very convenient and reaching interpretations that require new words for clarification and drastically change the literal meaning of the words.
    Stephen Daugherty wrote: Well, if you want to spin around for a little bit with your circular argument, be my guest.
    More personal attacks, eh? A sure sign of frustration with a weak/lame argument. There is nothing in Federalist # 85 to support the re-interpretation of “whenever” as “whenever contemporaneous” and/or “amendments” as “same-subject amendments”. There are no court judgements that And there have already been 4 times when two-thirds of the states have already submitted same-subject amendments. That only leaves the “contemporaneous” excuse. And it’s not a very good excuse, since it obviously requires the suspicious re-interpretation of “whenever” to “whenever contemporaneously”. Had the states truly understood this, why would they have submitted 523 amendment applications? Especially when herding cats would be easier than getting two-thirds of the states to do it simultaneously?
    Stephen Daugherty wrote: Insisting on an argument, though, does not consistute proving it.
    Funny! Whose repeating what?
    Stephen Daugherty wrote: I can prove in a framers own words that he saw the writing of this article in terms of several states getting together at the same time to call for a convention.
    False. There is no such proof. Only convenient (and suspicious) re-interpretations. Please see Lee Jamison’s statement above.
    Stephen Daugherty wrote: I think I have the better position.
    People are entitled to their opinions, but it doesn’t mean much when there’s nothing to substantiate it.

    So, Stephen, how many people are convinced by your arguments? Got any numbers?
    FOAVC.ORG (one of several groups) has almost 700 members (within only a few months and growing daily; some judges, a Chief Justice of the State of Michigan, lawyers, writers, engineers, business persons, artists, journalists, and people of all education levels, from all political parties, from every state of the United States) that believe the direct and literal language of Article V should be obeyed, and understand that for Congress and the Supreme Court to veto the literal text of the Constitution is a dangerous direction, and essentially makes the Constitution meaningless. Other court cases have drawn this very same conclusion.

    Stephen Daugherty wrote: And I don’t need a hundred repetitions of the same words to convince people of that.
    Funny! Perhaps one repetition deserves another, eh? So, how many people have you convinced?

    The Supreme Court weaseled out by using the “Political Question Doctrine” which allowed Congress to ignore Article V. However, not before the government admitted for the public record that the defendants in the lawsuit (each member of Congress) had violated federal criminal law in violation of their oath of office. Not before the government admitted the obligation of Congress to call a convention was “peremptory”, and not before the government admitted a convention call is based on a numeric count of applying states, not same-subject amendments.

    What should be very clear from all of this is that there are valid unanswered questions surrounding the Article V Convention method:

    • Can Congress veto the literal meaning of Article V?

    • Can Congress re-interpret “whenever” to “whenever contemporaneous”? That drastically changes the meaning.

    • Can Congress re-interpret “amendments” to “same-subject amendments”? That drastically changes the meaning.

    • Should Congress obey Article V until the literal text is amended?

    • There are no court rulings that sufficiently resolve these questions. Congress has simply been allowed to decide. In doing so, is that a violation of the literal meaning of Article V? Some say no, and some say yes and with good cause with so many (523) amemdent applications by all 50 states.

    • There is nothing in the Federalist papers that helps clear up the issue. Hamilton recognized the Constitution was imperfect and would need to be amended. Unfortunately, he did not anticipate a bloated, corrupt, FOR-SALE Congress would cleverly re-interpret “whenever” as “whenever contemporaneously”, and/or “amendments” as “same-subject amendments”.

    • Congress has a very obvious conflict of interest.

    Coleman v Miller, 307 U.S. 433 (year 1939) and Walker vs Members of Congress essentially create new amendatory and veto powers for the government nullifying any challenge to its acts. Walker established that neither Congress nor the government is obligated to obey the meaning, intent, or written language of the Constitution, thus acquiring the authority to veto the meaning, intent, and the literal written language of the Constitution. It also establishes Congress possesses exclusive amendatory control of the Constitution. Thus, due to these new powers, the Court no longer possesses the authority to declare an act of Congress or the government unconstitutional, since the Supreme Court ruling on which this authority is based, has been nullified by Walker.

    For opponents to the literal meaning of Article V, are you sure this is what you want? If so, if the Supreme Court and Congress are no longer bound by the original and literal meaning of the Constitution (without amending it first), then the Constitution is essentially dead (or dying). Not only that, but the Supreme Court’s authority to review violations of the Constitution also dies, if it is going to use the “Political Question Doctrine” whenever it finds it convenient.

    Professor Sabato Calls for Convention - he says Congress is where good ideas and reforms go to die.

    Posted by: d.a.n at October 20, 2007 03:21 PM
    Comment #236531

    Dan-
    The intention with the first part of Article Five was to put a threshold on Congress’s ability to change the constitution. Both Houses of Congress had to agree to it by a two thirds margin. The point of this, of course, would be to ensure that the proposal would have popular backing and the backing of the states before it was offered to the states for ratification. Then it would have to be so ratified by three quarters of the states.

    Why so many hurdles? Because if you can herd the cats to get the Amendment proposed and passed, then little question remains as to whether it reflects the will of the states, and the will of the people. It bears the legitimacy of consensus approval. Also, though, the first threshold that must be passed also functions as a filter, preventing frivolous and partisan amendments that will only function to waste people’s time from being forced onto the ballot. The more BS that’s allowed through, the better the chance something will end up changed that shouldn’t be.

    The method that allows the States to call their own convention and propose their own amendments is obviously meant to be an alternative approach, and a check and balance against the power of the national government. Why, though, should the states be any pickier when working through through their own means, than when working through Congress. My argument, plainly put, is that the call by the states should have similarly high standards to that required by a regular Amendment. Why make it easier for the states to propose Amendments than it is for Congress? The two approaches should act as analogues. The Convention call should not be an accidental or intentional end-run around the need to generate consensus in order to get an Amendment proposed.

    Hamilton’s words, as quoted by both me and Lee Jamison, talk of states uniting to propose amendments by convention.

    What do you have against substantive unity among the states? What do you have against high standards being applied to any proposal to change the Constitution, which after all, the states and the American people will have to live with after teh changes are done? Why do you have to insist on the latest incarnation of fast-food democracy?, of politicians who treat slim majorities or even minority support as a mandate to do as they please?

    I want great care given to those changes, and I want their proposal and ratification achieved fairly, nobody cheated out of their say by a standard that lets a few strategic members of a minority initiate what was clearly meant to achieved only with broad consensus.

    The real reason we see so many proposals and calls is that people nowadays are constantly trying to do an end run around current constitutional positions of the court by proposing Amendments that are meant to make their position on the issues the law of the land.

    Numbers don’t make an argument. Even Rob above is skeptical of your exclusive reading. He think it’s Congress’s decision. I think if you follow the plain meaning of the clause, then there is no trouble. When two-thirds of the state call for that convention together, there won’t be any ambiguities about the process. Just encourage a unified call for a general convention. If they refuse that, we’ll have a case.

    Posted by: Stephen Daugherty at October 20, 2007 08:00 PM
    Comment #236535
    Lee Jamison wrote: I have read the bulk of the text of Walker v. Congress and see an issue in the style of the suit, which was worded as an instrument designed to back both the courts and the Congress into a corner in which both either appear to be trying to overthrow the Constitution or admit to criminal wrongdoing. Its protestations to the contrary notwithstanding the suit does not turn on a single question, but weaves proposed criminal misconduct as regards tax law and the amendment question together in a too-clever-by-half hybridization that grants the courts an escape hatch over the really important issue- the fact Congress has no choice whether to call a convention or not. Is there a case before the courts which is sterilized against this taint of mixed issues?
    Yes, the tax issue should not have been a part of the suit. To my knowledge, no other suit exists. Your are right … a new case should not be tainted with mixed issues which may give the Supreme Court cause to dismiss it. A new case is needed. One that only seeks enforcement of Article V of the U.S. Constitution, and nothing more. Depending on the outcome, other suits can follow (regarding criminal acts, etc.).
    Stephen Daugherty wrote: I can prove in a framers own words that he saw the writing of this article in terms of several states getting together at the same time to call for a convention. I think I have the better position.
    Think? So, you are not certain? Where is this so-called proof?
    Stephen Daugherty wrote: Walker lost the case, and the Supreme Court had no desire to mess with it, so they let the other court’s decision stand.
    Just because the Supreme Court dismissed it (for other reasons) does not mean that the question of Article V is resolved.

    The Supreme Court has not yet ruled specifically on Article V of the U.S. Constitution.
    And Coleman v Miller, 307 U.S. 433 (year 1939) was not specifically about whether Article V should be obeyed.
    And Walker vs Members of Congress was dismissed for other reasons.

    So the quesiton about Article V has still not yet been answered.

    Stephen, care to explain how this helps prove your argument?

      The United States Supreme Court has on several occasions discussed its own, and other courts’ roles in interpreting the Constitution and its provisions:
      • [#01] U.S. v. Classic, 313 U.S. 299 (1941):
          “Where there are several possible meanings of the words of the constitution, that meaning which will defeat rather than effectuate the constitutional purpose cannot rightly be preferred.”
      • [#01] Martin v. Hunter’s Lessee, 14 U.S. 304 (1816):
          “Where the text of the constitution is “clear and distinct”, no restriction on its plain and obvious import should be admitted unless the inference is irresistible.”
      • [#01] Martin v. Hunter’s Lessee, 14 U.S. 304 (1816):
          “Words of [the] Constitution are to be taken in natural and obvious sense, and not in sense unreasonably restricted or enlarged.”
      • U.S. v Sprague, 282 U.S. 716 (1931):
          “Where intention of words and phrases used in Constitution is clear, there is no room for construction and no excuse for interpolation.”
      • Ogden v. Saunders, 25 U.S. 213 (1827):
          “Where provision in United States Constitution is unambiguous and its meaning is entirely free from doubt, the intention of the framers of the constitution cannot be inquired into, and the supreme court is bound to give the provision full operation, whatever might be the views entertained of its expediency.”
      • Martin v. Hunter’s Lessee, 14 U.S. 304 (1816):
          “The government of the United States can claim no powers which are not granted to it by the Constitution.”
      • Jarrolt v. Moberly, 103 U.S. 580 (1880):
          “A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed.”

    Article V of the U.S. Constitution states:

      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; …

    The Supreme Court will have to (and probably not in the too distant future) eventually address Article V of the U.S. Constitution.
    It’s really that simple.
    It’s not as complicated as some want to portray it.
    There are no credible arguments for re-interpretation of the “clear and distinct”, “plain and obvious”, and “unambiguous” meaning of “whenever” and “amendments”. Especially in view of many previous Supreme Court examples above. Even if there was some ambiguity, the “meaning which will defeat rather than effectuate the constitutional purpose cannot rightly be preferred.

    Posted by: d.a.n at October 20, 2007 10:55 PM
    Comment #236554

    Dan-
    The funny thing about the debate between us is that you’re not even letting the question of whether your interpretation is right be up to debate. You just consider it the right interpretation, and call it literal and say the debate is over, and spend the rest of the time trying to make out as if I don’t respect the words of the constitution.

    Article Five was meant essentially to be the same procedure, taken through two different political bodies. The identical threshold strongly backs this point of view. Nobody is seriously arguing that the standard for votes in Congress to propose an amendment is accumulative. It’s meant to represent the consensus of the vast majority of those representing the states and the citizens of those states. This, you do not address in your response. Maybe you glossed over it. So let me make it clear: I do not believe that the framer would use the same proportion for both methods of proposing Amendments, without wantin the same kind of consensus behind them. Since they made no effort to distinguish the character of one two-thirds majority from the other, besides the body making the proposal, it is reasonable to assume that what the framers wanted out of one, they wanted out of the other as well.

    Second, as written by Alexander Hamilton, and highlighted by me multiple times, he saw this in terms of states uniting to protect their interests. He said that however difficult it may be to get two thirds of the states to unite, that he didn’t doubt that they’d work towards their common interests.

    Third, the custom and manner in which this article has been expressed time after time in American history has been consistent with a standard of a politically united, concurrent, coordinated response by the states.

    Your argument continues to neglect this central question. You continue to argue about strict construction of the constitution, and treat your interpretation of the count as settled.

    I think the dogma which you have come to insist upon violates the spirit of the law, in requiring a strong consensus for Congress to propose an Amendment, but not doing the same for the states, despite the obviously identical proportion required to call the convention. I think it violates the intention of only having changes be proposed to the constitution after a strong consensus has decided they should be. I think it defeats the purpose of calling a convention to have this requirement placed on all the states to convene this (like you say, it’s not a choice) when the overwhelming majority has not consented to it.

    There is a mountain of evidence, historical, legal, and within the constitution itself to indicate that an accumulative standard is an excessive semantic stretching of the language.

    You want this interpretation obviously because it gets you your convention faster. You lament a number of times within this discussion about how getting a real, solid, united two thirds majority of the states to agree to a convention would be like herding cats. Well, sorry, but that’s actually how it’s supposed to be. The whole point is to make changes to the constitution impossible without the backing of an overwhelming majority. In that manner, a bare majority or minority cannot force it’s proposals or its Amendments on everybody else.

    There’s great power in the constitution, which is why nearly everybody appeals it at one time or another. It is a touchstone of our law, what distinguishes the iron pyrite from the true gold. I understand your motivation, the desperation that fuels it. But I do not share your interpretation, and it’s not because I do not respect the words of the constitution. I do respect it, but you have failed to demonstrate that anybody else but a contemporary group of activists would intepret things this way.

    With that in mind, my zeal in defending my position comes from a similar motivation. I oppose your interpretation, just as I oppose Bush’s interpretation that allows him to spy without warrants, start major wars without the say-so of Congress, deprive Americans of Habeas Corpus, and inflict torture on our prisoners.

    I would oppose such things even if they did strengthen Democrats, because while I am a partisan on behalf of my party, I am much more of a partisan of the notion that absolute, unaccountable power in anybody hands will create tyranny, and nobody is perfect enough to wield it without error. I believe in a system of checks and balances, even when it creates frustrating results for me and my party, even when it seems to make certain crises inevitable, because I believe in the long term that such restriction of power will save us from greater problems.

    Posted by: Stephen Daugherty at October 21, 2007 01:21 PM
    Comment #236561
    Stephen Daugherty wrote: d.a.n The funny thing about the debate between us is that you’re not even letting the question of whether your interpretation is right be up to debate.
    Not true. There’s no need to turn this into a personal issue.

    It’s not my interpretation of Article V that is the problem.
    The problem is some that are trying to re-interpret Article V.
    Article V is not that complicated.
    Congress can not re-interpret Article V without amending it first. That is illegal.
    The Supreme Court has not ruled that Congress can violate Article V.
    The Supreme Court has simply done nothing by dismissing Walker’s cases for other reasons.
    There are no court cases to support any re-interpretation of Article V. None.
    Congress is quite simply ignoring Article V, and in doing so, violating the Constitution they pledged an oath to uphold.
    Martin v. Hunter’s Lessee, 14 U.S. 304 (1816):“The government of the United States can claim no powers which are not granted to it by the Constitution.”

    Anyone that tries to support these re-interpretations of Article V are going to be thoroughly frustrated.

    And as already stated by the Supreme Court, even if there was some ambiguity (which there really is not), the: “meaning which will defeat rather than effectuate the constitutional purpose cannot rightly be preferred”.

    Thus, even if some ambiguity actually existed, it would have to err on the side to support the literal meaning over the convenient re-interpretation.

    Stephen Daugherty wrote: You just consider it the right interpretation, and call it literal and say the debate is over,
    False. It is not my interpretation. Again, there’s no reason to turn this into a personal issue. How about just sticking to the facts?

    The literal meaning of the words “whenever” and “amendments” leaves no doubt as to the meaning and intent.
    It is the re-interpretation that require new word to be inserted; new words that do not alredady exist that are rightfully rejected.
    Despite what many think, the Supreme Court has not ruled that Congress can violate Article V.
    The Supreme Court dismissed two cases about it for different reasons.
    The Supreme Court has not yet been forced to decide whether Congress is violating Article V, but that time is coming.
    We will be hearing more about Article V of the U.S. Constitution (such as the title of this thread).

    Stephen Daugherty wrote: … and spend the rest of the time trying to make out as if I don’t respect the words of the constitution.
    Yes, your comments quite clearly reveal that you do not respect the words of Article V of the Constitution.

    Your position on Article V is quite simply wrong, because of many reasons:

    • (1) There is no precedent to support Congress ignoring Article V. And the Supreme Court already stated in Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “Where the text of the constitution is clear and distinct, no restriction on its plain and obvious import should be admitted unless the inference is irresistible.”

    • (2) The Supreme Court has not ruled that Congress can ignore Article V, despite some that think that due to the dismissal of Walker vs Members of Congress; it was dismissed for other reasons, which allowed the Supreme Court to do nothing at all.

    • (3) Coleman v Miller, 307 U.S. 433 (year 1939) was not about whether Congress could ignore the text of Article V that states Congress shall call a convention.

    • (4) There were already 4 times prior to Coleman v Miller, 307 U.S. 433 (year 1939) that the Supreme Court specified that Congress must call an Article V Convention.

    • (5) The re-interpretation by some requires new words to re-interpret “whenever” as “whenever contemporaneously” and/or “amendments” as “same-subject amendments”, which changes the meaning significantly, and directly contradicts previous Supreme Court statements about any ambiguity: Ogden v. Saunders, 25 U.S. 213 (1827).

    • (6) There is nothing in Federalist # 85 to support the “comptemporaneous” or “same-subject” theory. The Supreme Court has not interpreted it that way either, despite what some think.

    • (7) The Supreme Court already ruled on multiple meanings too: U.S. v. Classic, 313 U.S. 299 (1941): “Where there are several possible meanings of the words of the constitution, that meaning which will defeat rather than effectuate the constitutional purpose cannot rightly be preferred.”

    • (8) The two-thirds requirement has already been met 4 times (of the 523 amendment applications by all 50 states)

    • (9) The Constitution can not be modified without an amendment. Until Article V is amended, it should be obeyed.

    Stephen Daugherty wrote: Nobody is seriously arguing that the standard for votes in Congress to propose an amendment is accumulative.
    False. There are many (including people within the government) that strongly disagree.

    FOAVC.ORG has almost 700 members (within only a few months) that believe the literal meaning of “whenever”; not “whenver contemporaneously”. Until Article V is amended, it should be obeyed. And how likely is it that three-fourths of the states will allow it to be amended to make it more difficult than what is clearly defined by the literal text? It’s VERY unlikely that three fourths of the states will give up more control and power to the bloated, corrupt, do-nothing Congress. That should help reveal something about the spirit-of-the-law. The states have a very good case that Congress is already violating Article V of the Constitution.

    Stephen Daugherty wrote: It’s meant to represent the consensus of the vast majority of those representing the states and the citizens of those states. This, you do not address in your response.
    Not true. 523 amendment applications by all 50 states is substantial. The states did not anticipate Congress choosing to violate Article V.
    Stephen Daugherty wrote: Maybe you glossed over it. So let me make it clear: I do not believe that the framer would use the same proportion for both methods of proposing Amendments, without wantin the same kind of consensus behind them. Since they made no effort to distinguish the character of one two-thirds majority from the other, besides the body making the proposal, it is reasonable to assume that what the framers wanted out of one, they wanted out of the other as well.
    People can believe as they like. But it doesn’t mean much when there is nothing to substantiate that belief.
    Stephen Daugherty wrote: Second, as written by Alexander Hamilton, and highlighted by me multiple times, he saw this in terms of states uniting to protect their interests. He said that however difficult it may be to get two thirds of the states to unite, that he didn’t doubt that they’d work towards their common interests.
    “Unite” does not equate to “same-subject amendments” or “whenever contemporaneously”. That excuse is extremely lame.
    Stephen Daugherty wrote: Third, the custom and manner in which this article has been expressed time after time in American history has been consistent with a standard of a politically united, concurrent, coordinated response by the states.
    Not true. There is no precedent, and “unite” does not equate to “same-subject amendments” or “whenever contemporaneously”.
    Stephen Daugherty wrote: Your argument continues to neglect this central question.
    False. I have studied this in detail. I built most of the web-site: FOAVC.ORG (the other Founders contributed most of the research which I have studied objectively with questions along the way). But Article V is not that complcated anyway.
    Stephen Daugherty wrote: You continue to argue about strict construction of the constitution, and treat your interpretation of the count as settled.
    Nonsense. It is not my interpretation that I argue for.

    It is the nefarious re-interpretations that I argue against.
    And it is not too hard to poke holes in these suspicious re-interpretations.
    There is really very little to interpet in Article V.
    The meaning is very clear.
    What is difficult and frustrating to opponents of Article V is trying to explain the re-interpretations.
    It’s not easy trying to re-interpret from “whenever” to “whenever contemporaneously”, and/or from “amendments” to “same-subject amendments”.
    Especially since such interpretations are quite simply illegal.
    Also, since the Supreme Court has never ruled such a thing.

    And that is supported by many Supreme Court cases in interpreting the Constitution and its provisions:

    • [#01] U.S. v. Classic, 313 U.S. 299 (1941): “Where there are several possible meanings of the words of the constitution, that meaning which will defeat rather than effectuate the constitutional purpose cannot rightly be preferred.”

    • [#02] Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “Where the text of the constitution is “clear and distinct”, no restriction on its plain and obvious import should be admitted unless the inference is irresistible.”

    • [#03] Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “Words of [the] Constitution are to be taken in natural and obvious sense, and not in sense unreasonably restricted or enlarged.”

    • [#04] U.S. v Sprague, 282 U.S. 716 (1931): “Where intention of words and phrases used in Constitution is clear, there is no room for construction and no excuse for interpolation.”

    • [#05] Ogden v. Saunders, 25 U.S. 213 (1827): “Where provision in United States Constitution is unambiguous and its meaning is entirely free from doubt, the intention of the framers of the constitution cannot be inquired into, and the supreme court is bound to give the provision full operation, whatever might be the views entertained of its expediency.”

    • [#06] Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “The government of the United States can claim no powers which are not granted to it by the Constitution.”

    • [#07] Jarrolt v. Moberly, 103 U.S. 580 (1880): “A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed.”

    Stephen Daugherty wrote: I think the dogma which you have come to insist upon violates the spirit of the law,
    People can think as they like, but it is meaningless without any supporting evidence. And more convenient re-interpretations, labels, name-calling, and redefining simple words doesn’t pass as evidence.

    It’s not dogma.
    Such labels simply reveal the frustration with such a weak and unsubstaniated position.
    Arguing against the meaning of the word “whenever” is comical.
    Congress is violating the plain and obvious text of Article V.
    It is that simple.
    Anyone that believes otherwise has to find a way to completely re-interpret “whenever” and “amendments”. Same-subject is not the excuse, since the two-thirds requirement has already been met 4 times.
    Anyone that believes otherwise must contort and squirm to re-interpret “whenever” to “contemporanously”, and try to redefine the simple and literal meaning of the word “whenever”:

    • when·ev·er

    • Pronunciation: \hwe-‘ne-v?r, we-, (h)w?-\

    • Function: conjunction

    • Date: 14th century

    • at any or every time that
    And the Supreme Court has already ruled in Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “Where the text of the constitution is clear and distinct, no restriction on its plain and obvious import should be admitted … and in U.S. v Sprague, 282 U.S. 716 (1931): “Where intention of words and phrases used in Constitution is clear, there is no room for construction and no excuse for interpolation.”

    Stephen Daugherty wrote: I think it violates the intention of only having changes be proposed to the constitution after a strong consensus has decided they should be.
    523 applications by all 50 states is a strong consensus (and the two-thirds limit was also reached 4 times). Congress is violating Article V.
    Stephen Daugherty wrote: I think it defeats the purpose of calling a convention to have this requirement placed on all the states to convene this (like you say, it’s not a choice) when the overwhelming majority has not consented to it.
    False. The majority has consented by submitting 523 amendment applications from all 50 states, and the two-thirds limit has already been reached 4 times. And “whenever” can not be re-interpreted to “whenever contemporaneously” without first amending Article V of the Constitition.
    Stephen Daugherty wrote: There is a mountain of evidence, historical, legal, and within the constitution itself to indicate that an accumulative standard is an excessive semantic stretching of the language.
    False.

    There is no precedent, legal, historical, or any evidence of any kind that refutes the literal text of Article V.
    Please show us some of this “mountain of evidence”.
    All I’ve seen is a very lame attempt to use the word “unite” in Federalist #85 as evidence that “whenever” is supposed to be re-interpreted as “whenever contemporaneously”.
    The Supreme Court has never ruled that Congress can violate Article V.
    The Supreme Court, by doing nothing, is essentially allowing Congress to violate Article V.
    Perhaps we should start calling it the Do-Nothing Supreme Court?

    Stephen Daugherty wrote: You want this interpretation obviously because it gets you your convention faster.
    Nonsense. Everyone should want the Constitution to be upheld and enforced.

    There’s no need to make a personal issue out of this.
    That simply reveals the weakness of your arguments.
    Instead, why not show us this so-called “mountain of evidence”?

    Stephen Daugherty wrote: You lament a number of times within this discussion about how getting a real, solid, united two thirds majority of the states to agree to a convention would be like herding cats.
    Everyone should want the Constitution to be upheld and enforced.

    Currently, Congress is violating Article V of the U.S. Constitution.
    Congress can not legally re-interpret from “whenever” to “whenever contemporaneously” and/or from “amendments” to “same-subject amendments” in Article V.
    Many previous cases (see above) strongly support that.
    While the Supreme Court and Congress do make interpretations, none have yet been made by the Supreme Court on Article V.
    No where does it say Congress can re-interpret “whenever” to “whenever contemporaneously” and/or from “amendments” to “same-subject amendments” in Article V.

    Do you think the states knew all along about this re-interpretation; that two-thirds must apply simultaneously?
    People should write their Congress persons and see what happens. Silence. What’s up with that? Ask them anything else, and you’ll get a response.

    Stephen Daugherty wrote: Well, sorry, but that’s actually how it’s supposed to be.
    False. That is a direct contradiction of the literal text of Article V, and there is no precedent to support an re-interpretations.
    Stephen Daugherty wrote: The whole point is to make changes to the constitution impossible without the backing of an overwhelming majority.
    The conditions defined by Article V have already been met. Congress is violating Article V.
    Stephen Daugherty wrote: In that manner, a bare majority or minority cannot force it’s proposals or its Amendments on everybody else.
    False. Article V requires two-thirds of states to call a convention, and three-fourths to ratify.
    Stephen Daugherty wrote: There’s great power in the constitution, which is why nearly everybody appeals it at one time or another.
    Not if Congress is allowed to violate it. A do-nothing, FOR-SALE, do-nothing Congress that has a clear conflict of interest.
    Stephen Daugherty wrote: It is a touchstone of our law, what distinguishes the iron pyrite from the true gold. I understand your motivation, the desperation that fuels it.
    There’s no need for personal attacks. It simply reveals how lame your arguments are.
    Stephen Daugherty wrote: But I do not share your interpretation, and it’s not because I do not respect the words of the constitution.
    That’s fine. People can believe what they like, but it doesn’t mean much if it is not substantiated by any facts, evidence, legal cases, and/or precedent.
    Stephen Daugherty wrote: I do respect it,
    False. A person can not both respect a law, and advocate its violation simultaneously.
    Stephen Daugherty wrote: …but you have failed to demonstrate that anybody else but a contemporary group of activists would intepret things this way.
    False. Not just activists.

    Just look at the title of this thread: “Constitutional Convention Begins October 19”
    Just google “Article V” (888 million hits)
    Just google “Article V Convention” (21,300 hits)

    Stephen Daugherty wrote: With that in mind, my zeal in defending my position comes from a similar motivation.
    False. My motivation is for defending the Constitution.

    Not defending the status quo?
    Not from blind partisan loyalties?

    Stephen Daugherty wrote: I oppose your interpretation,
    Again, it’s not my interpretation.

    It is the clear, original, and literal meaning of Article V.
    There’s really very little to interpret any other way.
    The meaning is very clear.
    To oppose the literal text of Article V of the U.S. Constitution, is to support violation of the Constitution, and to protect the status quo, and it requires re-interpretation from the literal meaning. And many court cases (above) already state that ambiguities (if any) must not be construed to defeat the mischief at which it is aimed.

    Stephen Daugherty wrote: just as I oppose Bush’s interpretation that allows him to spy without warrants, start major wars without the say-so of Congress, deprive Americans of Habeas Corpus, and inflict torture on our prisoners.
    Spying, torture, deprivation of Habeas Corpus, and starting wars based on lies are crimes and violations of the Constitution that should be rejected. And someone should be held accountable.

    And likewise with Congress violating Article V of the Constitution.

    Stephen Daugherty wrote: I would oppose such things even if they did strengthen Democrats,
    Yeah, right.

    Nevermind that Term-Limits would most certainly be one of the amendments at an Article V Convention.
    Nevermind that Congress has an obvious conflict of interest.
    Nevermind that Congress is currently violating the literal interpretation of Article V without any ruling from the Supreme Court to permit it; without first amendning Article V.

    Stephen Daugherty wrote: … because while I am a partisan on behalf of my party,
    NNNAAaaaahhhh … No kidding? Really? Heck, who would have never guessed.
    Stephen Daugherty wrote: I am much more of a partisan of the notion that absolute, unaccountable power in anybody hands will create tyranny, and nobody is perfect enough to wield it without error.
    Nevermind Congress’ obvious conflict of interest and failing to call an Article V Convention based on the clear and obvious meaning of the words “whenever” and “amendments”.

    Re-interpretations that drastically change the meaning are not allowed without first amending the Constitution.
    And Congress has not amended Article V from “whenever” to “whenever contemporaneously” nor from “amendments” to “same-subject amendments”.

    Stephen Daugherty wrote: I believe in a system of checks and balances,
    Obviously not, by supporting the convenient and suspicious re-interpretation of Article V from “whenever” to “whenever contemporaneously” and/or from “amendments” to “same-subject amendments”. Again, the Supreme Court did not yet rule on this issue of Article V.
    Stephen Daugherty wrote: even when it creates frustrating results for me and my party, even when it seems to make certain crises inevitable, because I believe in the long term that such restriction of power will save us from greater problems.
    Yes, it can be very frustrating trying to twist, contort, and reshape philosophies to rationalize what one’s party does.
    Stephen Daugherty wrote: … because I believe in the long term that such restriction of power will save us from greater problems.
    Violating Article V is a clear abuse of power, and that is exactly what is already and will create greater problems, already growing in number and severity (not to mention Congress’ dismal 11% to 18% approval ratings).

    And Congress’ dismal 11% to 18% approval ratings are some indication of that, not to mention the reams and reams of examples of corruption, graft, pork-barrel, waste, bloat, and crimes being commited by Congress and the Executive Branch.

    Already, 523 amendment applications by all 50 states have been submitted, the two-thirds requirement has been met 4 times, and Congress has ignored it.

    Neither Congress nor the Supreme Court has yet been forced to rule on Article V of the Constitution.
    Previous cases were dismissed for other reasons.
    I am confident if and/or when they finally are forced to deal with it, the literal meaning of Article V will be upheld and the Supreme Court will have no choice but to rule that Congress has violated Article V of the U.S. Constitution. Why? See the cases listed above. No re-interpretations are allowed. Especially not when the literal meaning is so simple and so clear. As stated from previous Supreme Court cases (above) dealing with the U.S. Constitution, ambiguities must default in favor of making the “meaning which will defeat rather than effectuate the constitutional purpose”, and “Where intention of words and phrases used in Constitution is clear, there is no room for construction and no excuse for interpolation.”, and “A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed.”

    And the “mischief at which it is aimed” is clearly a corrupt, irresponsible, incompetent, FOR-SALE, bought-and-paid-for, Do-Nothing Congress, which is in clear violation of Article V of the Constitution, and has a very clear and obvious conflict of interest.

    Stephen Daugherty wrote: There is a mountain of evidence, historical, legal, and within the constitution itself to indicate that an accumulative standard is an excessive semantic stretching of the language.
    False. What is “stretching” is the suspicious re-interpretation of “whenever” to “whenever contemporaneously”.

    The literal meaning requires no stretching.
    And even if an ambiguity or double-meaning existed, it would not allow the stretching of “whenever” to “whenever contemporaneously”.

    So, where is this “mountain of evidence”? Opinion alone doesn’t prove anything.
    Would you like to debate it with some of our members who are attorneys?

    Posted by: d.a.n at October 21, 2007 06:33 PM
    Comment #236583

    Dan-
    Article V is a hell of a lot simpler under the standard interpretation: Two-thirds of both houses of Congress or the states must agree for an amendment(or amendments) to be proposed.

    The real question is why is the application clause there? The answer is in Hamilton’s essay: it allows the states to propose changes to the constitution on which the national government is based without having to go through an incalcitrant national government.

    The funny thing is that the same proportion is demanded. You have two-thirds among the states, or among both Houses of Congress. The simplest way to look at this is that it’s the same process by two different routes. Your accumulation interpretation complicates everything, turning it from simple snapshot of political opinion in the States or Congress into this mess of a process where any arbitrary number that adds ups with the previous total to 34 can call a convention.

    The simplest interpretation is also the one that happens to have been the operative one for over two hundred years, and the one that Alexander Hamilton seems to have believed the right one when he was defending the constitution against its critics. Simplicity, common usage, original intent all point towards the proper interpretation of this article being the one that makes this an operation of a united, overwhelming majority of states, rather than a random result of addition.

    You point towards the 27th amendment, and say that’s evidence these things could go on forever, but the custom with most Amendments was to get them out quick. How do we know this? Because the first twenty-six amendments were all proposed and ratified within four years, even in pre-industrial times. In fact, the first amendment to take longer than about two years to be ratified was the 16th Amendment. The 27th Amendment was and is an anomaly.

    You keep on feeding me this whole line of statements about how the constitution must be enforced, about how Article V must be enforced etc, so on and so forth. I won’t bore the readers by quoting all of it, but it amounts to you asserting that your interpretation is implicitly correct, then browbeating me about the duties of Congress.

    How do I get this read? Because never once do you engage the facts of what was said, or the history. You don’t stay germane to the issue at hand.

    One particular example is your insistence on the number of FOAVC members who believe as you do. That’s not at all relevant. If they believe this thing on the same grounds you do, they’re all equally wrong. Or, if you guys actually had a decent argument, there could be just two of you, and you’d be more right than a hundred million people who disagreed.

    You talk about the states having a very good case, but here’s the thing: The States have never made this claim! I think one of the reasons Walker’s suit got tossed was that he didn’t have the state’s standing to complain about the issue.

    They haven’t complained. That should be your critical warning sign about this interpretation.

    They have not united, that is joined forces all at once, to protest this thing you call a miscarriage of constitutional law.

    The five hundred applications don’t form a consensus, because for most of them, there’s nobody there to be that consensus for us today. You realize that at least half of all these applications were made by legislators that are now dead. How can they be part of any consensus now? How can, for that matter, state governments now long replaced by new ones, express the current consensus of the states?

    Hell, let’s take it that one crucial step further: how can any legislature, any state government that is not the current one be part of a consensus now? This is especially relevant when we see such tidal changes in politics as we do now. With a dragged-on accumulation, there’s no real one-to-one correspondence between the calls for the convention and the ones that actually want it. When you take a political snapshot of things, when the calls have to be united to be effected, you know with certainty that the states asking for the convention still want it when it comes.

    Call my arguments what you will. You’ve probably decided to do that already. But every time some state has duplicated their call rather than let their one and only call stand, which is all fifty times, ten times over, that’s one more strike against your interpretation. Every time two-thirds of the number of current states passed and nobody gave a damn, it was one more strike against your interpretation.

    And no, Google hits don’t indicate interest, especially when you’re so vague with the terms. Article V could be relevant to just about any kind of document. Hell, the word Article could show up in any number of documents.

    It also happens to be the title of an important part of the Constitution which has genuine interest in it apart from your special interest in it for convention calling purposes.

    Article V Convention also happens to have interest apart from your notion that the standard for it is accumulative.

    As for your response to my assertion that “I would oppose such things even if they did strengthen Democrats.”?

    I believe in setting limits on government power. If you want to make it personal by calling me a liar, by asserting that I’m a hypocrite, whether that’s implied or explicit, then go ahead, and that will be yet another part of your argument that fall victim to fallacy. It’s funny you decry partisan warfare, yet employ some of the same tactics of vilification and ad hominem smearing without seeming to blink an eye. You could be right, and it would be wrong of you to assume what you just have about my character.

    You will not end up being right or wrong because of your character, at least not logically speaking. As much as I dislike the disrespect you seem intent on showing me, it will make no difference to which one of us is right.

    I have presented my evidence, and will present it again in the next thread on this subject.

    Posted by: Stephen Daugherty at October 21, 2007 09:34 PM
    Comment #236597
    Stephen Daugherty wrote: d.a.n- Article V is a hell of a lot simpler under the standard interpretation: Two-thirds of both houses of Congress or the states must agree for an amendment(or amendments) to be proposed.
    Still trying ot re-interpret Article V, eh?

    Congress can not legally do that.
    Just because Congress is violating the law and getting away with it so far does not make it right.

    Stephen Daugherty wrote: The real question is why is the application clause there? The answer is in Hamilton’s essay: it allows the states to propose changes to the constitution on which the national government is based without having to go through an incalcitrant national government.
    Wrong. There is nothing in the Federalist papers that allows a re-interpretation of “whenever” to “contemporaneously” or “amendments” to “same-subject amendments”.
    Stephen Daugherty wrote: Your accumulation interpretation complicates everything, turning it from simple snapshot of political opinion in the States or Congress into this mess of a process where any arbitrary number that adds ups with the previous total to 34 can call a convention.
    False. It is not my interpretation. It is the literal text of Article V that matters. Nothing in it means “contemporaneously”.
    Stephen Daugherty wrote: The simplest interpretation is also the one that happens to have been the operative one for over two hundred years, and the one that Alexander Hamilton seems to have believed the right one when he was defending the constitution against its critics.
    False. There is nothing in the Federalist papers that allows a re-interpretation of “whenever” to “contemporaneously” or “amendments” to “same-subject amendments”.
    Stephen Daugherty wrote: Simplicity, common usage, original intent all point towards the proper interpretation of this article being the one that makes this an operation of a united, overwhelming majority of states, rather than a random result of addition.
    “united” does not equate to “whenever” or “same-subject”.
    Stephen Daugherty wrote: You point towards the 27th amendment, and say that’s evidence these things could go on forever, but the custom with most Amendments was to get them out quick. How do we know this?
    False. That helps to discredit the comtemporaneous argument, but it is not needed, because the literal meaning of “whenver” makes it quite clear.
    Stephen Daugherty wrote: Because the first twenty-six amendments were all proposed and ratified within four years, even in pre-industrial times. In fact, the first amendment to take longer than about two years to be ratified was the 16th Amendment. The 27th Amendment was and is an anomaly.
    None of that matters. It is truly immaterial.
    Stephen Daugherty wrote: You keep on feeding me this whole line of statements about how the constitution must be enforced, about how Article V must be enforced etc, so on and so forth. I won’t bore the readers by quoting all of it, but it amounts to you asserting that your interpretation is implicitly correct, then browbeating me about the duties of Congress.
    False. It is not my interpretation.

    What I oppose is a suspicious re-interpretation of the literal meaning of “whenever” to “whenever contemporaneously” in Article V.

    Stephen Daugherty wrote: How do I get this read? Because never once do you engage the facts of what was said, or the history. You don’t stay germane to the issue at hand.
    Nonsense. I quoted dozens of court decisions to support the literal meaning of Article V.
    Stephen Daugherty wrote: One particular example is your insistence on the number of FOAVC members who believe as you do. That’s not at all relevant.
    Sure it is relevant since you wrote …
    Stephen Daugherty wrote: Nobody is seriously arguing that the standard for votes in Congress to propose an amendment is accumulative.
    Stephen Daugherty wrote: If they believe this thing on the same grounds you do, they’re all equally wrong.
    Right. Everyone else is wrong.
    Stephen Daugherty wrote: You talk about the states having a very good case, but here’s the thing: The States have never made this claim! I think one of the reasons Walker’s suit got tossed was that he didn’t have the state’s standing to complain about the issue.
    False. The states are not required. The case was dismissed because it tried to include an attempt to regain taxes since the government had violated the Constitution.
    Stephen Daugherty wrote: They haven’t complained. That should be your critical warning sign about this interpretation.
    Some have indeed complained. But some were not aware that the Article V was being violated. They are now learning different.
    Stephen Daugherty wrote: They have not united, that is joined forces all at once, to protest this thing you call a miscarriage of constitutional law.
    523 amendment applications by all 50 states is united.
    Stephen Daugherty wrote: The five hundred applications don’t form a consensus, because for most of them, there’s nobody there to be that consensus for us today.
    It more than meets the requirements of Article V. That is all that is needed.
    Stephen Daugherty wrote: You realize that at least half of all these applications were made by legislators that are now dead.
    That did not prevent the 27th Amendment from being ratified 220 years later. There is not time limit in Article V.
    Stephen Daugherty wrote: How can they be part of any consensus now? How can, for that matter, state governments now long replaced by new ones, express the current consensus of the states?
    Because they keep applying the same amendments over and over. Based on same-subject, the conditions have been met 4 times.
    Stephen Daugherty wrote: With a dragged-on accumulation, there’s no real one-to-one correspondence between the calls for the convention and the ones that actually want it. When you take a political snapshot of things, when the calls have to be united to be effected, you know with certainty that the states asking for the convention still want it when it comes.
    That is not what Article V states.
    Stephen Daugherty wrote: Call my arguments what you will. You’ve probably decided to do that already. But every time some state has duplicated their call rather than let their one and only call stand, which is all fifty times, ten times over, that’s one more strike against your interpretation. Every time two-thirds of the number of current states passed and nobody gave a damn, it was one more strike against your interpretation.
    Just because Congress is violating Article V does not justify it.
    Stephen Daugherty wrote: And no, Google hits don’t indicate interest, especially when you’re so vague with the terms. Article V could be relevant to just about any kind of document. Hell, the word Article could show up in any number of documents.
    False. You failed to follow directions. The search strings are in double-quotes (i.e. “Article V Convention”) so that it matches that phrase exactly. I was assuming you already knew that. I guess not.
    Stephen Daugherty wrote: As for your response to my assertion that “I would oppose such things even if they did strengthen Democrats.”? I believe in setting limits on government power. If you want to make it personal by calling me a liar, by asserting that I’m a hypocrite, whether that’s implied or explicit, then go ahead, and that will be yet another part of your argument that fall victim to fallacy.
    I did not call you a liar or hypocrite. I am not the one making personal attacks.
    Stephen Daugherty wrote: It’s funny you decry partisan warfare, yet employ some of the same tactics of vilification and ad hominem smearing without seeming to blink an eye. You could be right, and it would be wrong of you to assume what you just have about my character.
    There is nothing to support these claims. There’s no need to keep trying to turn this into a personal matter.
    Stephen Daugherty wrote: You will not end up being right or wrong because of your character, at least not logically speaking.
    Again, there’s no need to keep trying to turn this into a personal matter.

    If you are frustrated, its not my fault. It could be because you argument for re-interpretations of Article V have no credibility. And where’s that mountain of evidence?

    Stephen Daugherty wrote: As much as I dislike the disrespect you seem intent on showing me, it will make no difference to which one of us is right.
    Respect is something that is earned.

    Again, there’s no need to keep trying to turn this into a personal matter.
    As for being right, Article V is what it is.
    The literal text is “plain and obvious”.

    Stephen Daugherty wrote: I have presented my evidence, and will present it again in the next thread on this subject.
    What evidence?

    Please do. Am I supposed to be impressed by that?

    Posted by: d.a.n at October 22, 2007 12:03 AM
    Comment #236875

    Stephen, slavery existed for a century before it was vanquished. Civil Rights for Black Americans took another century. Which indicates that your argument that because so much time has passed means Article V precedent has not been met, is bogus. Just because a wrong exists for a century or more DOES NOT mean it is right.

    Due process was ignored by police for 2 centuries before habeas corpus and Miranda were implemented. Time does make a wrong right. Time does not make your argument valid. The language of the Constitution trumps the absence of acting on it by any legal standard.

    Posted by: David R. Remer at October 24, 2007 06:08 PM
    Post a comment